Justice Committee on Feb. 6th, 2013

[Rob Nicholson, Conservative, Niagara Falls, ON]

I think it is. In answer to one of the questions about expanding existing Canadian law in the area of extraterritoriality and its application to this kind of activity, I said it's important, and it's consistent with the comments that I and others have made with respect to how borderless this kind of activity has become. Certainly it's consistent with that, and it's one of the things that we have to do. We have to consistently update our criminal laws to reflect what's happening out there.

As you know from your study of the Criminal Code, much of the time what we are doing on the Criminal Code is updating. We're reflecting what's happening out there in terms of changes of technology and changes in the techniques of criminal individuals. We have to do that. When we bring forward bills like this that make changes of the kind we are proposing here, we're being consistent with what is happening around the world and the threats we are facing. It is a different world from what it was 30 years ago, and we are always on the lookout to make sure our laws are as up to date as possible and reflect the threats that are out there. As I indicated, these types of threat continue.

[The Chair, Conservative, Mike Wallace]

Thank you, Minister.

Our final questioner for today is Mr. Jacob. The minister is committed to be here until 4:30, and by my BlackBerry, you have five minutes.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

I am the last, but not the least, member to take the floor in the minister's presence.

Thank you, Mr. Minister, for coming to testify before us.

The risk of terrorists using former weapons scientists with knowledge in nuclear weapon production is significant and recognized by the Global Partnership Against the Spread of Weapons and Materials of Mass Destruction. Some people feel that the spread of such knowledge poses an imminent risk.

Do you think your government and other governments are investing sufficient efforts into redirecting former weapons scientists?

[Rob Nicholson, Conservative, Niagara Falls, ON]

Again, that might more properly be directed to the Minister of Foreign Affairs, Mr. Jacob.

We take seriously all kinds of activity, whether they're at home or abroad, that might constitute a potential threat to this country. As you can see, we're taking action on activity that we find reprehensible, and this bill before you today is an excellent example of how we are particularizing our response to the threat that we believe is out there for Canada. That's what this bill is all about.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

Do you think that the risk we are talking about has increased owing to the constant development of the Internet?

[Rob Nicholson, Conservative, Niagara Falls, ON]

It's very interesting that you should say that. We certainly see that the Internet often provides a venue for either the proliferation or the dissemination of information with respect to illegal activity. I've been before this committee a number of times on the whole area of child pornography and the difference the Internet has made.

Our job is to stay on top of these issues, look at changes either to technology or to different methods of committing these types of crimes, and make sure that our laws are as up to date as possible to reflect the current state of the threat before Canada.

I've made the point before that criminals don't just telephone each other, and they've gotten out of the habit of sending telegrams to each other. This is the world in which we live, so we are constantly looking at the existing laws within this country and constantly making sure that we are bringing forward legislation that responds to the challenges. This is just one of the challenges that we've had. The nuclear threat, we believe, is a continuing threat to Canada and to our partners and allies, and this is one of the responses that we've had.

[Pierre Jacob, NDP, Brome—Missisquoi, QC]

How would you rate the recent international progress with regard to nuclear issues?

[Rob Nicholson, Conservative, Niagara Falls, ON]

The signing of these two particular treaties is evidence of the kind of cooperation that is possible throughout the world. As I indicated to you, a number of countries have already signed these treaties and ratified them. Dozens of countries came together to put this together, so if you're asking me if I'm optimistic, the answer is yes, when I see that kind of cooperation and when I see treaties like the two that are the subject of this particular piece of legislation.

It will be important for Canada that by passing this legislation, getting it through the House of Commons, and getting royal assent we are sending the message that we too are a part of that effort to contain this threat, and that we are showing leadership and are showing that we are prepared to work with our allies on this issue.

I think you can point to these two pieces of legislation as progress in this area. Certainly the legislation before you is evidence of that progress.

[The Chair, Conservative, Mike Wallace]

Thank you very much, Minister, for joining us today to talk about introducing Bill S-9 , and I thank the committee members for their excellent questions.

I will suspend for a minute while the minister leaves and we change over to the next hour.

[The Chair, Conservative, Mike Wallace]

I'm going to call the meeting back to order for our second half.

I remind the committee that we're expecting the bells to start to ring at 5:15 for a vote at 5:45.

There is an item of committee business with the fourth report, which should be on your desk. It is a report from the subcommittee on agenda and procedure that sets out the plan for the committee for the next two cycles, or the next month. Instead of waiting, does anybody want to move that right now so that we can deal with it?

[Kerry-Lynne Findlay, Conservative, Delta—Richmond East, BC]

I move that we adopt this fourth report as set out.

[The Chair, Conservative, Mike Wallace]

Are there any questions or comments?

(Motion agreed to)

Now we'll move on to our witnesses from the justice department. We have Mr. Piragoff, senior assistant deputy minister, and Greg Koster, counsel, criminal law policy section. Welcome.

Did you have a statement you wanted to make, or will you just take questions?

[Donald Piragoff, Senior Assistant Deputy Minister, Policy Sector, Department of Justice]

We'll take questions.

[The Chair, Conservative, Mike Wallace]

Let's start with questions. From the New Democrat Party, who would like to start?

Mr. Scott, you have five minutes.

[Craig Scott, NDP, Toronto—Danforth, ON]

Thank you, Mr. Chair, and thank you both for being here.

I wanted to follow up on a few points made by the minister.

The Senate did notice that the “making a device” offence from at least one of the treaties was not in the initial bill. Nobody had any problem with putting it in.

The minister's response didn't appear entirely convincing when he said that he thought it was already covered by possessing or distributing. He went to say that if you're possessing or distributing, you must also be in the business of making. Now, that doesn't follow, so I'm wondering if there's any other reason, apart from what the minister gave, that you felt at the initial stages that making a device was already covered somewhere and didn't need to be in the bill.

[Greg Koster, Counsel, Criminal Law Policy Section, Department of Justice]

Thank you for the question.

When we were looking at the design of that particular offence, as you know, we were looking at the two treaties together, and they deal with separate subject matters: one is radiation material and devices, and the other one is nuclear material.

Now, the device is the only thing that is called to be made, so when we were designing that catch-all section 82.3 offence, we had to make some decisions. We saw that the “making” doesn't apply to nuclear material or radiation material; were there other verbs that could capture it? To be quite honest, we did look at “possess” and we looked at some of the existing offences in the code that used similar language, such as “manufactures”. The word “makes” was another one. There are a number of offences that use the concept of “make”.

Some of the courts have said that's a dictionary definition, which includes a completion, as the term is used—“to make it”—because if you haven't completed making it, you've attempted to make it. That's something different.

We said that if you've made it, you are in possession of it. When we made the decision about how to structure that offence, that was the thinking, to be honest.

[Craig Scott, NDP, Toronto—Danforth, ON]

I appreciate that answer. It's quite clear from what you said that you did put your mind to it. It wasn't just a pure omission.

[Greg Koster]

It wasn't an omission.

[Craig Scott, NDP, Toronto—Danforth, ON]

I think we're all glad to hear that. At the same time, there was no real pushback in making it clear through the Senate amendment.

[Greg Koster]

In my view, it strengthens the intent of the bill.

[Craig Scott, NDP, Toronto—Danforth, ON]

I come from a background of international law, so I used to deal with treaties an awful lot. A huge percentage of our domestic legislation is now either a direct implementation of international treaties or has some connection. You would know that better than I, I think.

I addressed this issue a bit in my second reading speech. Even for somebody like me, reading an implementing bill that already has the handicap of being in the form that our amending bills take—meaning it's quite fragmented, and you have to be constantly going back and forth—and then layering on that a background treaty that isn't actually appended.... There's no commentary whatsoever to enable the average legislator to make their way through to how the treaties connect to the legislation.

I spoke a fair bit about this, and in my view there's a bit of a transparency rule of law problem that we're coming up against. When other systems introduce legislation, it's much more common to have fairly detailed commentaries about bills. I don't know this for a fact, but I'm pretty sure that a lot of those systems would have quite clear commentary literally taking the legislator through where a piece of legislation, a provision, links up with the treaty, and would probably have some commentary about why a particular form of implementation was chosen. However, we really don't have that in the way we present bills implementing treaties.

You can't bind the government, so it's just a question along these lines: do you think the time might be ripe to try to come up with a system of presenting bills, implementing treaties, that's just a little bit more transparent and helpful than what we have now?

[Donald Piragoff]

Thank you.

I hope that's not a reflection that we're not transparent in trying to answer your question.

[Craig Scott, NDP, Toronto—Danforth, ON]

No, not at all.

[Donald Piragoff]

I know the problem. The way we implement treaties is that we usually have a body of law that, to a large extent, can already implement a good part of the treaty. As you indicated, it becomes a situation of looking at where the gaps are in the domestic law and then presenting to Parliament a bill that will fill the gaps, because the existing legal framework already would implement certain parts of the treaty.

My first question is that I hope we're being transparent. That's why we're here as witnesses: to help you understand the process of where the gaps are.

[Craig Scott, NDP, Toronto—Danforth, ON]

It's a bit staged, though.