Justice Committee on Oct. 28th, 2010

[Kelly Block, Conservative, Saskatoon—Rosetown—Biggar, SK]

You are correct. However, that was an act of terrorism; it was terrorist activity. This amendment is proposing to ensure that suicide bombing is included in the definition of terrorism, in the definition of terrorist activity.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Yes, I understand, but when I read the wording in French, it's clear that the intent is to include suicide attacks. So, what should I be relying on in order to understand the intent of the proponent of this bill: the French version or the English version? I see that you are relying on the English version. Are you right to be relying on the English version, or am I right to be relying on the French version?

[Kelly Block, Conservative, Saskatoon—Rosetown—Biggar, SK]

I would suggest that we need to rely on the English text that has been presented in this bill and that the French text needs to support the English text that has been presented in this bill.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Why do you say that? Why would we rely more on the English wording than on the French wording?

[Kelly Block, Conservative, Saskatoon—Rosetown—Biggar, SK]

Again, sir, because that's the way it was submitted; that was the intent of the individual who first proposed this bill. I believe it remained the intent of Senator Frum, who introduced the bill back into the Senate this session.

I'm wondering if I could call upon the staff member from the justice department to join me to answer that question.

[The Vice-Chair, Liberal, Brian Murphy]

Yes, I think that's a good idea.

So you would like to defer that question of why the French and English versions don't accord and, I guess, the intention of the original drafter. The original draft was probably in English, knowing Senator Grafstein.

Glenn Gilmour.

[Glenn Gilmour, Counsel, Criminal Law Policy Section, Department of Justice]

Thank you very much.

I think it is arguably the case that the French wording is not the same as the English in that suicide bombing.... If one interpretation of “l'attentat suicide” is “suicide attack”, then that is certainly a broader phrase than the “suicide bombing” in the English version.

However, my understanding is that in the interpretation of the texts, there are various rules of statutory interpretation that come into play. I believe one of them is that when it comes to interpreting criminal law, you should generally read an interpretation that is the most favourable to the accused, given the possible impact that could be had on the accused.

My guess is that in interpreting these provisions, the courts would look at both the English and the French and possibly conclude that suicide attack, in this particular context, or at least the phrase “l'attentat suicide”, would be interpreted along the same lines as terrorist bombing.

However, I do concede that there is a difference in the wording between the two phrases, in my view.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

The proponent of the bill is not here today to explain why he wants to limit the scope of his legislation.

[Glenn Gilmour]

I'm sorry...[Technical Difficulty—Editor]

[The Vice-Chair, Liberal, Brian Murphy]

One moment please, Mr. Ménard. You will have to repeat your question.

[Glenn Gilmour]

I offer my apologies.

Could you repeat your question, Mr. Ménard?

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

Having worked as a criminal lawyer, I am obviously familiar with the legal rule. An accused must benefit from the most favourable interpretation of the law. As a lawmaker, it seems to me that if we're talking about suicides attacks, the definition must be far broader than would be the case for “suicide bombings”, considering that the worst suicide attack to have occurred on this planet did not involve the use of a bomb. Mr. Lee gave examples of other suicide attacks that could be carried out in the same fashion.

Perhaps I could just give you another random example: a terrorist gets on a bus filled with tourists that is travelling up a mountain, jumps on the driver, grabs the wheel and drives the bus off the mountain, killing all the passengers. It seems to me that is just as serious an act as placing a bomb under a bus on a public thoroughfare.

I could certainly have understood your thinking had you said that suicide attacks are already covered under the legislation. If they are, then that necessarily means that the legislation also covers suicide attacks carried out using a bomb. However, when I read the French or the English version, it seems clear to me that the intent of the person who drafted this bill was to ensure that suicide attacks would be covered. One may well think that there is no need to cover them, because someone carrying out a suicide attack receives the punishment he deserves, but the fact is that here we are considering everything related to that attack: the preparation, the person who gave advice, and so on. Given all of that, I would like to see this apply to all suicide attacks, and not just those carried out using a bomb.

I realized that this bill will be referred back to the Senate. And it's not a bad idea for people in the Senate to see that members of the House of Commons sometimes have better ideas than they do… Sometimes.

[The Vice-Chair, Liberal, Brian Murphy]

Perhaps.

Would you care to respond to that question--in the briefest of time?

[Glenn Gilmour]

Just very briefly, as it has already been mentioned, I believe the intention of this piece of legislation was to focus specifically on the aspect of suicide bombing and to ensure, in case there was any lack of clarity, that suicide bombing was caught by the definition of “terrorist activity”.

Certainly other forms of suicide attack, I think it's fair to say, Monsieur Ménard, would be caught by the general definition of “terrorist activity” even if they don't fall within this greater certainty clause, given the way the general definition, I would say, of terrorist activity is defined.

So for the purpose of this bill, focusing specifically on terrorist bombing, I think the way the English is worded is suitable, because that was the purpose of the bill.

As to the question of whether, in a particular situation, that would amount to a suicide bombing or not, I suppose there will always be those factual instances where there might be disagreement as to whether it constitutes a suicide bombing or some other form of terrorist attack.

Nonetheless, the general definition of “terrorist activity” would still catch it.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll go to Monsieur Petit.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Mr. Chairman, I would like to share my speaking time with my colleague, Mr. Norlock.

First of all, Ms. Block, I would like to commend you for this, because it isn't always easy for a member to pilot a bill of any kind through Parliament. To begin with, it's a lengthy process and, very often, a bill—even a good bill—can die on the Order Paper, as they say, between parliamentary sessions. In this case, it came back to life. I checked the titles and wording of the various bills submitted prior to this one, and in every case the term used was “suicide bombings”. No other term has ever been used.

Furthermore, I would also like to commend the senator, with whom I frequently travelled for activities involving the Organization for Security and Cooperation in Europe. He truly is a great gentleman who, I believe, has fought long and hard, as part of the different groups he was associated with, in order to prevent terrorists, whether it be for religious, national or political reasons, from carrying out bombing attacks, and so on. I believe that is the purpose of this bill and that is really what he was seeking to do.

Having said that, on behalf of my colleagues, I would like to confirm that we will be supporting this. I will now turn it over to my colleague, Mr. Norlock.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Thank you very much, my colleague.

I guess my question would be for Mr. Gilmour. It's obvious to me that this bill is needed. It's obvious that we are wont to support it. My simple question is on the language issue that we have been dealing with.

It sounds to me as though it doesn't imperil the efficacy or the intent of the bill; it just creates an interpretive issue that the court before which the case may be coming would be able to deal with. It simply would revert to the intent behind the bill, which would be, if it's a suicide attack, to revert to existing law, or if it's a bomb—to me, a bomb is an explosive device, as the simplest way to put it—the court would be able to handle the issue at hand.

Would I be correct in that, or does it place the legislation itself in peril if there were to be an appeal under this particular clause?

[Glenn Gilmour]

My own view is that it is not a fatal flaw, if that's what you're concerned about. I think it would be an interpretive issue that would be decided by the courts, as they have done on past occasions when there have been differences in wording between French and English versions.

As I said, there is a variety of interpretive rules that the courts have used. One of them is the rule I expressed—probably very poorly—to Monsieur Ménard, that when it comes to the interpretation of criminal law matters, the courts try to strike interpretations. If there's one interpretation that's less favourable to the accused than one that is favourable, the courts as a general rule will try to choose the interpretation that's more favourable to the accused.

As to exactly how that rule would apply in this particular case, I think it's fair to say that courts would probably look at the English language, which says “suicide bombing”, and consider whether or not the French phrase, “l'attentat suicide”, should be interpreted in light of the English. But of course that's mere speculation on my part.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

I guess that would then lead me to say that, should this committee pass this as is, there is really no need to send it back to the Senate, because this place moves at a snail's pace, and who knows...? We just heard in the news that in Washington, D.C., I believe it was, they were able to thwart a possible bombing on their subway.

As these issues become more and more a daily issue, one would not want to impede this by sending it back to the other place for simply a slight error that is not fatal to the legislation.

So unless, Mr. Gilmour, you tell me something otherwise, I would implore this committee to just pass this as is so that we can get this legislation before the House as soon as possible.

[Glenn Gilmour]

Ultimately that is a decision for this committee to make, and I think it would be inappropriate for me to comment on that.

[Rick Norlock, Conservative, Northumberland—Quinte West, ON]

Thank you.

[The Chair, Conservative, Ed Fast]

Thank you.

Is there anybody else?

Seeing no one, I want to thank our witness, Kelly Block, and also counsel, for being here.

Mr. Gilmour, I think you're going to stick around because we're doing clause-by-clause consideration, so don't leave yet; Ms. Block, you can certainly leave if you wish.

[Kelly Block, Conservative, Saskatoon—Rosetown—Biggar, SK]

Thank you.

[The Chair, Conservative, Ed Fast]

Okay, we're going to call clause-by-clause.

(On clause 1)

We have a Bloc amendment to clause 1. I would ask Monsieur Ménard to introduce that amendment.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

I don't really need much time to discuss it. I think I've already made most of my arguments through the questions that were asked.

However, one thing is certain. I believe, with all due respect, that if there is one thing we should not do and that I find unacceptable, it would be to allow two contradictory versions to pass into law on the assumption that the courts will deal with it later.

I can also tell you when the courts do deal with these issues subsequently, their interpretation is generally not the one that most benefits the accused. That is a rule laid out by the Supreme Court that is now part of our case law—a rule articulated by the highest court in the land, which was to always give the accused the most favourable interpretation.

I, personally, feel that if this is an important provision, it should include all forms of suicide attacks, because the worst suicide attacks that we have experienced thus far were not necessarily carried out using a bomb. Obviously, if an airplane explodes, we can assume that it contained explosives. However, I am not sure everyone would agree that if someone flies a plane into a building, that plane could be considered a bomb. However, the other example I cited earlier is just as appalling. If someone decides to deliberately drive a bus full of passengers off a cliff into a ravine, by grabbing the steering wheel from the driver, the outcome is just as appalling.

Furthermore, if we don't need more security, then we don't need this at all. It's as simple as that. This is already a terrorist act covered by the legislation. So, if that legislation meets a certain need, I guess that need will cover all forms of suicide attacks, and not just those carried out using explosive materials or bombs.

That is the reason why I tabled this amendment which—I should point out in passing—was suggested to me by the Quebec Bar. It was initially the Quebec Bar that drew our attention to this point. As I recall, they were also of the view that the term “suicide attack” would be closer to the expressed intent of the framer of the bill, which was to fill a gap… That's why I am presenting this amendment, as well as the one that follows. I believe they should both suffer the same fate—in other words, both should either be passed or defeated.