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.