Evidence of meeting #57 for Justice and Human Rights in the 41st Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was treaties.

A video is available from Parliament.

On the agenda

MPs speaking

Also speaking

Donald Piragoff  Senior Assistant Deputy Minister, Policy Sector, Department of Justice
Greg Koster  Counsel, Criminal Law Policy Section, Department of Justice

3:30 p.m.

Conservative

The Chair Conservative Mike Wallace

I call the meeting to order.

Ladies and gentlemen, welcome to the Standing Committee on Justice and Human rights, meeting 57.

Pursuant to the order of reference of Friday, November 30, 2012, our orders of the day are to consider Bill S-9, an Act to amend the Criminal Code.

Our first witness is the Honourable Rob Nicholson, the Minister of Justice and Attorney General of Canada.

Thank you, Minister Nicholson. You have approximately 10 minutes.

3:30 p.m.

Niagara Falls Ontario

Conservative

Rob Nicholson ConservativeMinister of Justice and Attorney General of Canada

Thank you very much.

I'm very pleased to be joined by Mr. Greg Koster and Mr. Don Piragoff from the Department of Justice.

I'd like to welcome you, Mr. Chairman, and all the new members to this committee. I certainly wish you all the best. I'm sure you'll find it a very interesting role to be a part of. I was on this committee for just under eight years, and it was a great experience. I wish all of you who are joining it the very best.

I'm pleased as well to appear before you on Bill S-9, the Nuclear Terrorism Act. The bill, if passed, will permit Canada to become a state party to both the 2005 amendment to the Convention on the Physical Protection of Nuclear Material and the 2005 International Convention for the Suppression of Acts of Nuclear Terrorism.

The diplomatic history and Canada's role in negotiating these two international instruments are well known and are already part of the parliamentary record.

I will focus my remarks before this committee on the specific elements of the bill, and I will take a moment to address some of the questions that were raised at the second reading debate in the other chamber.

The first new offence would be found at proposed section 82.3 of the Criminal Code. It is directed at persons who make a device or possess, use, or traffic in nuclear or radioactive material or devices for the purpose of causing harm to persons, property, or the environment.

This offence would also criminalize activity against a nuclear facility or its operations for those same nefarious purposes. The proposed maximum penalty for this offence would be a term of life imprisonment.

You will note that the concept of making a device was added by amendment during the review of this bill in the Senate.

A second new offence would be found at proposed section 82.4 of the Criminal Code. This targets persons who use or alter nuclear or radioactive material or devices, or do anything against a nuclear facility or its operations, in order to compel a person, a government, or an international organization to behave in a certain way. Again, the maximum penalty would be a term of life imprisonment.

The third new offence would be at proposed section 82.5 of the Criminal Code. This offence is directed at illegal activity done in order to obtain nuclear or radioactive material or devices or to obtain access to a nuclear facility. This uses elements of existing criminal offences, such as theft, fraud, and robbery, and adds an element—for example, to obtain nuclear material.

Finally, given the severity of the potential harm, as well the massive government and public reaction if there ever was a risk that one of the proposed offences in Bill S-9 would be committed, a new section, proposed section 82.6, calls for the creation of an offence of threatening to commit a nuclear terrorism offence.

The proposed penalty for this offence threat will be a maximum term of 14 years of imprisonment.

These four offences that I have just described make up the backbone of Bill S-9. The offences are targeted and the proposed penalties are appropriate, given similar provisions in the Criminal Code and related jurisprudence.

The treaties that Bill S-9 seeks to implement require state parties to assume extraterritorial prosecutorial jurisdiction. In this regard, Bill S-9 would give our courts the jurisdiction to try these new offences in the listed factual situations that are set out in clause 3 of the bill.

In addition, even though the majority of Criminal Code offences are prosecuted by the provinces and territories, the Attorney General of Canada would have new concurrent prosecutorial authority over these new nuclear terrorism offences, as is the case with existing terrorism offences in the Criminal Code.

The bill also seeks to define a number of terms, including “nuclear facility” and “radioactive material”.

The final point I would like to make on the technical aspects of the bill is that with the inclusion of these new offences in the existing definition of “terrorist activity” in section 83.01 of the Criminal Code, a number of important terrorism provisions will apply, such as consecutive sentencing, a reverse onus at bail hearings, and the availability of a one-year wiretap authorization. Taken together with the various general provisions in the Criminal Code that address different forms of party liability such as attempts and conspiracies, as well as existing Canadian law outside of the Criminal Code, these proposed amendments would put Canada in a position to ratify both of these important nuclear security treaties.

Some have questioned the timing of the introduction of Bill S-9, but when we look at some of our closest allies, we see that they too have recently taken steps to ratify and, in some cases, introduce these bills for discussion within their parliaments. For instance, the United Kingdom became a party to both these treaties in 2009 and 2010. Australia modified its laws to achieve ratification of the two treaties in 2008 and just recently again in 2012. Finally, I would note that the United States had a bill before Congress aimed at domestic ratification of these treaties, and it recently died in the Senate's Committee on the Judiciary.

Another question raised during second reading debate concerned the addition of the words “makes a device” to the proposed section 82.3 offence. As I mentioned earlier, this was an amendment that was made, and we accepted that amendment. In discussion with the Department of Justice we believed it wasn't strictly necessary; that said, to make it absolutely clear, we did agree to go along with that proposal.

The two treaties together have approximately 38 criminalization requirements, and therefore the offences were grouped together under the common offence element. The prohibition on making included making devices but not making nuclear or radioactive material. The proposed offence at 82.3, as introduced, was intended to apply to persons who, again, make a device. In this regard, the offence applies to anyone who possesses a device. It might be the same person who makes it, but either way it's covered. If you make it, you possess it. That being said, the government did have a look at the amendment, and we think it better reflects the intentions of the bill.

Questions have been raised about the scope of proposed section 82.5, one of other sections I enumerated, which deals with the commission of an indictable offence in order to obtain a nuclear or radioactive material or device. While a number of specific offences are listed in the treaty, such as theft, robbery, etc., the treaty language also refers to “the use of force or any other form of intimidation” at paragraph 9(1)(f) of the CPPNM amendment and “use of force” in paragraph 2.2(b) of ICSANT, the other treaty. This is broad conduct and beyond the specific offences listed in the treaties, but the notion of the use of force could include any act of violence or force and therefore any number of existing, indictable offences could be contemplated as falling within that conduct. It's for this reason that the present formulation in section 82.5 was used.

The final technical question raised during the debate on second reading of the amendments to the CPPNM under paragraph 9(1)(d) was the criminalization without a specific intent requirement of import or export of nuclear material without lawful authority.

In international law, states such as Canada are permitted to rely on domestic law to implement international treaty requirements. Given that this particular requirement under paragraph 9(1)(d) does not have a specific intent requirement such as to compel a government or cause a death, the existing offences under the Export and Import Permits Act, the Customs Act, and the Nuclear Safety and Control Act fully satisfy this treaty requirement, so there was no need to create a new offence in this particular bill.

Mr. Chairman, my remarks have addressed some of the important features of Bill S-9 and I have attempted to answer some of the technical questions that were posed in the debate.

As was highlighted by world leaders at the last nuclear security summit in the Republic of Korea in March of last year, nuclear terrorism continues to be one of the most challenging threats to international security.

With this particular piece of legislation, we have taken concrete steps to strengthen the way Canadian criminal law deals with acts relating to nuclear terrorism. The amendments proposed and the subsequent ratification of these instruments will deliver a global message that Canada continues to take nuclear security very seriously and that international collaboration yields beneficial results for everyone.

Thank you, Mr. Chair.

3:40 p.m.

Conservative

The Chair Conservative Mike Wallace

Thank you for that, Minister.

We have the minister until 4:30 p.m. and we will go to questions right away.

Madame Boivin from the NDP will be first to ask questions.

3:40 p.m.

NDP

Françoise Boivin NDP Gatineau, QC

Thank you, Mr. Chair.

Welcome, Mr. Minister. This is your first appearance before this committee in 2013. That is the case for several other witnesses, I am sure. Given the announcements you regularly make, we expect to see other bills come before us.

The NDP has supported the bill. We are fully aware of the fact that this piece of legislation will help us fulfill our international obligations under various agreements. You did explain that.

Before we start discussing Bill S-9 as such, it would be important to talk about how bills are analyzed by your department. Some matters that were made public during the parliamentary break have made me seriously concerned as the justice critic for my party. Your answers may alleviate those concerns. However, it is clear that, under the Department of Justice Act, the minister must ensure that bills are consistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms.

I will not go into details when it comes to courses. I will let the courts do that. Nevertheless, some important concerns have arisen. They have to do with our actions, as a committee, when we study bills from your department. Rightly or wrongly, that situation makes us doubt the seriousness and thoroughness of your department's approach. I am talking about your department's lawyers complying with that legal obligation.

Regarding Bill S-9—I will remain within the context of that bill—it is clear that you, as minister, have to sign a certificate. In fact, that would apply to practically any other bill introduced by the government or submitted to us by the government through the Senate.

I would first like to know whether the examination provided for under section 4.1 of the Department of Justice Act has been carried out regarding Bill S-9. Also, as what we are hearing at different levels makes the whole situation somewhat unclear, I would like to know what steps are taken before you sign the certificate.

Finally—and this question follows up on my previous one—I would like to know if you have indeed signed the certificate of compliance with the charter. Before we begin the study of Bill S-9 or any other bill, we need you to clarify this situation.

3:40 p.m.

Conservative

Rob Nicholson Conservative Niagara Falls, ON

First, thank you for your welcome to the committee in 2013.

Again, as you've underscored, our justice legislation is very important to the government. Yes, you can expect more legislation to come before this committee, and of course I hope it will have everyone's support.

As you quite correctly pointed out, under section 4.1 of the Department of Justice Act, I have an obligation to examine bills that are presented—not just by the Department of Justice, but all government bills. I must satisfy myself that they comply with the charter and Mr. Diefenbaker's Bill of Rights.

That said, I do get advice on legislation. It is provided to me by the Department of Justice, and they do an excellent job of analyzing these bills to ensure they're constitutionally sound and comply with the pieces of legislation and the constitutional requirements that I have just indicated. The actual signing is done by a legislative counsel, but again, that analysis is carried out by the department, and on all the bills that come before Parliament, I am advised by the department with respect to their constitutionality.

With respect to this bill, in your analysis and your study of it I think you'll come to the same conclusion that I have: that it does not raise constitutional questions, that it's completely within the purview of the Parliament of Canada to pass this law, and that it's consistent with other parts of the Criminal Code. This bill does comply, as do the other pieces of legislation I will be bringing forward for your consideration in the future.

3:45 p.m.

NDP

Françoise Boivin NDP Gatineau, QC

Do you simply receive verbal advice, or are we talking about written advice and proper analyses in compliance with the charter? I am trying to understand the process.

The allegations we have heard are very serious and cast doubt on the whole process. Your answer is rather vague, Mr. Minister.

3:45 p.m.

Conservative

The Chair Conservative Mike Wallace

Give a short answer, please.

3:45 p.m.

Conservative

Rob Nicholson Conservative Niagara Falls, ON

I can give you complete assurances that the bills we have before Parliament meet that test. I get advice, either verbally or in writing, with respect to legislation, and I'm very pleased and very satisfied with the advice I've received over the years.

Mr. Chairman, with respect to the bill you have before you, after my analysis of this and what I've heard, I am completely satisfied that this is completely constitutional and should continue to have the support of everyone at the committee.

3:45 p.m.

Conservative

The Chair Conservative Mike Wallace

Thank you, Minister.

Our next questioner is Madam Findlay, from the Conservative Party.

3:45 p.m.

Conservative

Kerry-Lynne Findlay Conservative Delta—Richmond East, BC

Thank you, Mr. Chair.

Welcome, Minister Nicholson and colleagues. It's good to see you here again.

Minister, of course I have complete confidence that you and your department have looked at the constitutionality of all the legislation you put forward for our consideration. With that confirmation in mind, I would like to go to the substance of the legislation before us.

Minister, you mentioned in your remarks that this legislation came about as a result of two international conventions in 2005 and that it addresses what is considered to be the continuing threat to international security, nuclear terrorism. I know this is a made-in-Canada piece of legislation. There were 38 recommendations, and we have tailored it to work with our existing Criminal Code provisions.

This is a fairly foundational question. I wonder if you could comment on how you see the threat of nuclear terrorism in Canada and as Canada relates to our international allies?

3:45 p.m.

Conservative

Rob Nicholson Conservative Niagara Falls, ON

I think it's very clear that nuclear terrorism is a significant threat not just to the security of Canada but to global security as well. Al-Qaeda, for example, as you may know, has had a long-standing desire to acquire weapons of mass destruction. There's no secret to that, and this government acknowledges that threat. In cooperation with other like-minded countries, we have examined the threat of the proliferation of nuclear materials and the consequences that could be brought about if they are used for improper or criminal purposes.

It's not surprising that the two treaties that are the subject of this bill came about, and it's no surprise as well that a number of countries, a number of which I have mentioned, are in the process of looking at them or have ratified them. Both of them have been ratified, for instance, by the United Kingdom. Australia is another example. Russia, France, and others have either ratified it or are looking at it. There was one attempt at ratification by the American Congress; I don't know if they use the term "died on the order paper”.

Nonetheless, this continues to be a concern for all countries.

We're doing our part. We're making a statement that we acknowledge this is a continuing threat, and we're doing something about it by signing on and bringing our laws into compliance with the recommendations in both treaties. With the passage of this bill by this committee—of course, subsequent to royal assent it will become the law of Canada—we will be able to sign on to those treaties.

I think this is a step in the right direction. It sends the message to individuals involved with illegal activity that Canada is a part of a group of nations that are going to continue their dedication to fight this kind of activity. It sends the message to our allies and partners that we're with them on this issue. As you're aware, these are not threats that just affect only one country or another. In a sense, we're all in this together when these threats and this type of activity take place.

Thank you for the question.

3:50 p.m.

Conservative

Kerry-Lynne Findlay Conservative Delta—Richmond East, BC

As I mentioned earlier with respect to the ratification, it's my understanding that there were 38 recommendations. What has the approach been from your department in terms of how we proceed with domestic law to implement this?

In other words, there isn't just a list of 38 things. You've infused it, it would appear, into the Criminal Code provisions. Could you speak to that approach?

3:50 p.m.

Conservative

Rob Nicholson Conservative Niagara Falls, ON

Yes. Thank you for that question, and you're quite correct. We took those 38 elements of criminalization contained within the treaties, and if you examine them on a case-by-case basis, you will note that many of them are covered already by existing legislation, in particular by the Criminal Code. Things like theft, obviously, are already there.

We had a look at the four sections that I enumerated in my opening comments. In a sense, we grouped the kinds of activities together in four specific sections that deal directly with these types of activity and we addressed the penalties that go along with them as well. We made the distinction that it's not just theft if you're stealing this kind of material. The threat to society is of such import that the penalties are increased. It wasn't just a question of gathering up and making sure that all this activity was criminal; we wanted to make sure that the right penalties were in place, penalties that accord with the seriousness of this kind of activity.

We didn't want to have all kinds of duplication, Mr. Chair. It was unnecessary to have 38 new sections. That was not the case. As you can see, and your analysis will confirm it, they're grouped together. This is a cleaner and more precise approach, in my opinion.

3:50 p.m.

Conservative

The Chair Conservative Mike Wallace

Thank you, Minister.

Our next questioner is Madam Bennett, from the Liberal Party.

3:50 p.m.

Liberal

Carolyn Bennett Liberal St. Paul's, ON

Thanks very much.

Thank you, Minister.

The Liberal government signed this convention in 2005 and it came into force in 2007, but Canada has not been able to ratify because this isn't in legislation yet. Seeing everybody is in favour of it, what took so long?

3:50 p.m.

Conservative

Rob Nicholson Conservative Niagara Falls, ON

Actually, it was very difficult, as you will remember, Ms. Bennett, to try to get any legislation through in the criminal justice area. If the dozens of bills that I introduced into the House weren't opposed by one of the three parties, there was a desire many times by the opposition parties to talk about them incessantly, to go on and on, and I'd get a bit of a filibuster, so it was a bit of a challenge. With respect to the election that took place in 2011, we have a majority government. These things are moving along a lot better, and I'm very pleased about that.

As I indicated to you, quite apart from that, the activity in question is criminal activity, and more specific, and the penalties are increased. That said, if you look around, you will see that it's consistent with our allies. I indicated to you that both the British and the Australians have moved on this concern in the last couple of years. The Americans are not there yet, but my expectation is that they will examine this issue again, so it seems to me it's consistent with our allies.

I'm much more optimistic these days when we introduce legislation, and I will be introducing more legislation. Because of the new configuration in the House of Commons, I am much more optimistic today that we'll get it through.

3:55 p.m.

Liberal

Carolyn Bennett Liberal St. Paul's, ON

Seeing that everybody is in favour of this bill, did you or your predecessor have a conversation about this particular kind of legislation in terms of protecting Canadians with the leaders of the Liberal and NDP parties in previous parliaments?

3:55 p.m.

Conservative

Rob Nicholson Conservative Niagara Falls, ON

To be fair, I've had conversations throughout the years with them, and yes—

3:55 p.m.

Liberal

Carolyn Bennett Liberal St. Paul's, ON

On this?

3:55 p.m.

Conservative

Rob Nicholson Conservative Niagara Falls, ON

On all legislation—

3:55 p.m.

Liberal

Carolyn Bennett Liberal St. Paul's, ON

On this?

3:55 p.m.

Conservative

Rob Nicholson Conservative Niagara Falls, ON

On this particular legislation, this was part of the enumerated bills that I wanted to get to, but yes, most of the focus of the last year or two has been concentrating on cracking down on drug dealers and going after people in the child pornography business and people who sexually assault children. I know most of the efforts of this committee, and certainly of the government, were to push that, but this was always important to us. Again, because most of the activity was already criminalized, I wanted to get it through.

If you look at the bill that was most recently passed in Parliament, there was some activity that wasn't criminalized, so it seemed to me that was very important. For an adult, for instance, to give sexually explicit material to a child wasn't a crime in Canada a year and a half ago. That was a big concern to me, so that was one of the new provisions that I wanted to get through. Indeed, two adults talking to each other and conspiring online to set up a child for the child to be sexually exploited wasn't a crime in Canada, so yes, those have actually been my priorities. I've tried to push those as much.... And again, I welcome and I applaud any support we get. As you know, it was very difficult for our first five years in government.

3:55 p.m.

Liberal

Carolyn Bennett Liberal St. Paul's, ON

You're telling me that even though you would have had the support of both parties, this was not a priority for you.

3:55 p.m.

Conservative

Rob Nicholson Conservative Niagara Falls, ON

It is a priority, but if you're asking me what I've done with my time, my time has been pushing all the legislation that we have had.

I'm glad to hear this; if there are bills that the Liberals are going to support us on, this is wonderful news, and we're going to push these things, but I have found many times in the past that even when bills supposedly had the support of all parties, the debate would go on and on in the House of Commons. While everyone has the right to debate, it was always my hope that we could get through some of that legislation and get it enacted into law.

3:55 p.m.

Liberal

Carolyn Bennett Liberal St. Paul's, ON

I don't think those kinds of generalities are fooling anybody these days.

Under the status quo, are the acts that you now are making punishable under proposed sections 82.3 to 82.6 currently criminally liable? Without this bill, are these still criminal offences? Is that what you're saying to me?