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

4:55 p.m.

Senior Assistant Deputy Minister, Policy Sector, Department of Justice

Donald Piragoff

That's correct.

4:55 p.m.

Conservative

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?

4:55 p.m.

Senior Assistant Deputy Minister, Policy Sector, Department of Justice

4:55 p.m.

Conservative

Kerry-Lynne Findlay Conservative Delta—Richmond East, BC

All right.

Therefore, there would be discretion within the judiciary to set sentences upon conviction, as long as they didn't exceed those amounts. Isn't that correct?

4:55 p.m.

Senior Assistant Deputy Minister, Policy Sector, Department of Justice

Donald Piragoff

That's correct.

4:55 p.m.

Conservative

Kerry-Lynne Findlay Conservative Delta—Richmond East, BC

Thank you.

How much time do I have?

4:55 p.m.

Conservative

The Chair Conservative Mike Wallace

You have a minute and a half.

4:55 p.m.

Conservative

Kerry-Lynne Findlay Conservative Delta—Richmond East, BC

Thank you.

I'll get to the question that I wanted to talk about in the first place.

On this Senate amendment and the addition of “making”, I was a bit confused, so I want some clarification.

It would seem to me that if you were making nuclear material or a nuclear device, you would obviously be in possession of it. That is what was assumed with the original wording. However, I can see a situation in which perhaps you are in possession of such material that you didn't actually make; the person who did make it may have then passed it along.

For greater clarity, is that the reason, or part of the reason, that the minister agreed with the amendment to include “making”?

4:55 p.m.

Counsel, Criminal Law Policy Section, Department of Justice

Greg Koster

It is part of the reason, but the making is only in relation to the device. Just for the record, it's just in relation to the device.

One of the reasons that wasn't mentioned was that, as we all know, this is fitting in with the world structure. Other countries may use that term of “making” a device, and in fact do use that term. As far as international relations are concerned, and in relation to extradition and mutual legal assistance requests for which this treaty will form the basis, it'll help in that regard.

4:55 p.m.

Conservative

Kerry-Lynne Findlay Conservative Delta—Richmond East, BC

Okay.

In Bill S-9 I noticed that there were several provisions for definitions. Am I correct in assuming that the definitions we're adopting are consistent with the meaning of those definitions in adoption by other countries?

4:55 p.m.

Counsel, Criminal Law Policy Section, Department of Justice

Greg Koster

That's correct. The nuclear facility definition was taken from ICSANT; the nuclear material definition existed in the Criminal Code from the 1980 convention and is consistent with the original CPPNM, article 1; the radioactive material definition was taken from ICSANT, article 1; and the device definition was taken from ICSANT, article 1.

4:55 p.m.

Conservative

Kerry-Lynne Findlay Conservative Delta—Richmond East, BC

Thank you.

4:55 p.m.

Conservative

The Chair Conservative Mike Wallace

Thank you.

Our next questioner is Mr. Scott.

4:55 p.m.

NDP

Craig Scott NDP Toronto—Danforth, ON

Thank you.

I just have one question before passing it back to Madame Boivin.

The minister referred to how specific intent elements of at least one of the treaties actually more or less already exist in our system. He mentioned three statutes, if I'm not mistaken, that already do the job, so it wasn't necessary to be more specific in this act.

I'm wondering if the department could undertake to submit an overview, as brief as possible, of what those statutes are and how they actually do implement any specific intent requirements under the treaties, unless that's already been done and I've missed it.

4:55 p.m.

Senior Assistant Deputy Minister, Policy Sector, Department of Justice

Donald Piragoff

I can answer that.

I think what the minister was saying wasn't on the specific intent. Some of the treaties require that we criminalize the import or export simpliciter of certain material. What the minister said is that we already have legislation that does that.

For example, exporting without a licence is in section 13 of the Export and Import Permits Act. Importing or exporting without a licence is also covered by section 26 of the Nuclear Safety and Control Act, and smuggling of materials would be caught already by section 59 of the Customs Act. That would be just a simple import or export, with no requirement for any specific intent.

5 p.m.

NDP

Craig Scott NDP Toronto—Danforth, ON

Okay, that's great.

It's on record now, so thank you so much.

5 p.m.

Conservative

The Chair Conservative Mike Wallace

Madame Boivin is next.

5 p.m.

NDP

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.

5 p.m.

Senior Assistant Deputy Minister, Policy Sector, Department of Justice

Donald Piragoff

I don't have the provision in front of me, so I'll be answering purely on my memory of the provision that you refer to, which is an existing provision of the Criminal Code.

That provision was put in for the purposes of ensuring that a person would not have a bogus acquittal or a bogus conviction in a foreign country and then say, if they were arrested in Canada, “Well, I've already been tried and I've been acquitted” or “I've already been tried and I was convicted and I got a small fine, so you cannot try me again”.

5 p.m.

NDP

Françoise Boivin NDP Gatineau, QC

But when you talk about

certaines normes juridiques canadiennes de base

—basic Canadian....

I don't know how to translate the word “juridique”.

What do you mean? Do you have criteria? Is it set, or is it going to be done case by case? I ask just so that we have an understanding beforehand, before we get into that.

5 p.m.

Counsel, Criminal Law Policy Section, Department of Justice

Greg Koster

I'm sorry I don't have an exact answer for that full question. I just want to be clear that in the provision that's in the bill, all that's being amended is the reference to section 7. We've done amendments to section 7, so this actually was meant to fall within the sort of consequential aspect. Those words were not ones that we've created. We just renumbered because we renumbered the provision that section refers to. All of the things that fall after the reference to 7.2 to 3.1 to 3.7 are just to account for the renumbering in section 7.

5 p.m.

NDP

Françoise Boivin NDP Gatineau, QC

I'm not sure that I'm following you or that you're following me. I'm referring to the fact that we put aside the defence of section 607 of the Criminal Code in certain specific concepts. Mr. Piragoff addressed it, and I understand the bogus conviction. There are some countries where it could happen.

We talk about some type of norms, but I don't exactly know which norms you're talking about or if there are some definite criteria. Let's say a crown attorney is deciding if he's going to file some type of accusation against somebody. Will there be some direction given? What gives?

5 p.m.

Senior Assistant Deputy Minister, Policy Sector, Department of Justice

Donald Piragoff

It is very much a judgment call on the part of a crown attorney to look at the situation. It really becomes, to use the comment, a smell test first. Does something smell fishy here, something that is not proper?

However, the real determination is the court, because the court has to make the decision as to whether or not a defence is applicable or not. The court would be looking at the facts, and the facts as to what happened in the foreign country would have to be presented. The court would then interpret the basic norms of what constitutes a fair trial in Canada.

A lot of that would be governed by the principles in the Canadian Charter of Rights and Freedoms, because of course it sets out some basic principles. Those principles have been elaborated by the courts, including the Supreme Court of Canada, into more detail. A court would look at some of those fundamental principles and might say that what happened in a foreign country was not a really fair trial but a bogus trial. The court would not acknowledge that the trial happened and would not give any validity to that acquittal or that conviction. Therefore, the defence would not be applicable.

5:05 p.m.

Conservative

The Chair Conservative Mike Wallace

Thank you very much.

I have no other speakers or questioners on my list, so I'm assuming that no one has any further questions for our gentlemen.

Thank you very much for joining us today and answering these questions.

I want to thank all three parties for submitting lists of names for witnesses. We will be starting with witnesses at our Monday meeting.

With that I will adjourn the meeting. Thank you very much.

The meeting is adjourned.