Evidence of meeting #59 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 international.
A recording is available from Parliament.
NDP
Pierre Jacob NDP Brome—Missisquoi, QC
Thank you, Mr. Barber and Mr. Hamilton.
My next question is for you, Mr. Bunn.
We know that the world has been going through an economic crisis over the past few years. Canada, the United States and Europe have not been spared. We know that the budget is a key aspect. What would be the minimal security threshold below which we should not fall? In other words, has this global financial crisis weakened nuclear security?
Associate Professor of Public Policy, Belfer Center for Science and International Affairs, Harvard University
It's a great question. I'm glad to say that I don't think so. I don't think that safety or security is being cut significantly below where it was, but on the other hand, I think there are countries that are more reluctant to make new investments than they would have been because of the economic crisis.
In particular, I, for one, have been somewhat disappointed in a couple of aspects of the international reaction to Fukushima. First, while I think most individual states have done an excellent job of reviewing the safety of their own nuclear facilities with respect to the lessons learned from Fukushima, if you compare the international reaction, in terms of putting in place tougher international standards and agreements, to what happened after Chernobyl, there's really no comparison. The international community has been much slower to commit to doing things jointly after Fukushima than they were after Chernobyl.
But I think on the security side, because it was a safety incident at Fukushima, people didn't think as much as they should have about the possibility that terrorists might look at that and say, “Hmm, there's an interesting way I could create some terror, by cutting off power and cooling to a nuclear power plant. How would I do that?” I think Fukushima really teaches us security lessons as well as safety lessons, and those have not been learned and implemented in as many countries as the safety lessons have.
Part of the reluctance may be related to the cost, given the financial situation that many countries and the nuclear industry itself find themselves in.
Conservative
The Chair Conservative Mike Wallace
Thank you, Professor.
And thank you, Mr. Jacob.
That's the end of our time for this panel.
I want to thank Professor Bunn for joining us from Harvard and contributing to our discussion of Bill S-9. We very much appreciate that.
I also want to thank all the members who are here from the Department of Foreign Affairs and International Trade for their input.
Mr. Barber, you made a commitment to one of the members of the committee for a response. I would ask that that go to the clerk and that response be circulated to all members of the committee.
Thank you.
We will suspend for about one minute until we get the Finance people at the table, and we'll start on the clause-by-clause.
Conservative
The Chair Conservative Mike Wallace
Oh, my old days—until we get the Justice people at the table.
Thank you very much. We'll be suspended for one minute.
Conservative
The Chair Conservative Mike Wallace
Ladies and gentlemen, I'll ask you to take your seats. We're going to start here and see if we can get this completed.
I want to welcome, from the Justice department, Mr. Koster and Madame Morency.
We'll call you Carole and Greg. How does that sound?
You're here to answer questions, I'm assuming, as we go clause by clause. Is that correct?
Conservative
The Chair Conservative Mike Wallace
Okay. Thank you very much.
Just so you know, this is not a very large bill, ladies and gentlemen. It's nine clauses or so.
There have been amendments submitted by the Liberal Party, and those are related to clause 5. Just so you know in advance, if amendment Liberal-1 is defeated, that automatically defeats Liberal-2; Liberal-3 will be defeated, Liberal-4 will be defeated, and Liberal-5 stands on its own.
If you do have a question about a clause, please put up your hand so we can ask the appropriate staff to respond, and then we'll go to a vote.
Let's get started.
Pursuant to Standing Order 71(1), consideration of clause 1 is postponed, so I have to start with clause 2.
(Clause 2 agreed to)
(On clause 3)
Mr. Mai has a question.
NDP
Hoang Mai NDP Brossard—La Prairie, QC
Yes, very quickly.
We raised the issue of
extraterritoriality. We have noticed that certain provisions of the convention have not been repeated in Bill S-9, including offences committed abroad against a Canadian citizen, offences committed against a state or a government facility of that state abroad, including an embassy or diplomatic or consular premises, and offences committed abroad by a permanent resident or a stateless person who habitually resides in that state.
Can you explain to us why that was not repeated in Bill S-9?
Greg Koster Counsel, Criminal Law Policy Section, Department of Justice
Thank you for the question.
Regarding the proposed extraterritorial jurisdiction as set out in clause 3, you did mention the jurisdiction for an offence committed by a Canadian citizen. That is, in fact, covered under paragraph (c) of that provision.
I believe the other areas you mentioned fall under the permissive jurisdiction grounds. Treaties often have the mandatory and the permissive, and what we have done is gone with the mandatory jurisdiction grounds.
Conservative
The Chair Conservative Mike Wallace
We'll take the vote on clause 3.
(Clause 3 agreed to)
(Clause 4 agreed to)
(On clause 5)
That brings us to clause 5, where we have amendments. We'll deal with the amendments one at a time.
On the table will be Liberal amendment 1.
Liberal
Sean Casey Liberal Charlottetown, PE
My comment with respect to the first four amendments will be one and the same, but I think you indicated that if number one is defeated, the rest will fall as well.
Conservative
The Chair Conservative Mike Wallace
If number one is defeated, number two is automatically defeated.
Liberal
Sean Casey Liberal Charlottetown, PE
Proposed section 82.3 starts out with a description of the mens rea required for the offence, the mental element.
It starts out with “Everyone who, with intent...”, and then it talks about the physical element of the offence. It describes the mental element, and then it describes the physical element. So the mental element is the intent to cause death, serious bodily harm, etc., so everyone with that mental element who makes a device or possesses, uses, transfers, exports, and so on.... That is an offence with the mental and the physical element enumerated.
What I'm seeking to clarify is that, after it describes the physical element of that first offence, it uses the word “or”. The question that raises in my mind is, for everything after the “or”, does it require that you have that same mental element that's described in the first three lines, or does it not?
These amendments would specify that the mental element that is prescribed in proposed section 82.3, for example, the intent to cause death, serious bodily harm, etc., is also required for the other components set out there.
Without having that enumerated, it could be interpreted that the mere commission of the physical act is sufficient to warrant a conviction. So you don't need a specific intent. If you commit the physical act, you're culpable.
The sole purpose of all of these first four proposed amendments is to specify that the mental element described applies to all of the other physical acts contained in it. That's the rationale for the amendment. It's to make that crystal clear.
Conservative
The Chair Conservative Mike Wallace
Before I go to you, would the staff like to respond at all to the clarification?
Counsel, Criminal Law Policy Section, Department of Justice
Certainly. I'll just note two things.
The first is that during the Senate consideration of this bill, there was a government amendment that removed the word “who” from the proposed offence at both sections 82.3 and 82.4. That was stuck in the middle of the offence. That was in order to make it consistent with the French, but also to make it clear that the intent was to apply to both acts that are listed under both offences.
I can describe that the intent of the offence itself, as described by the minister both at the Senate and in the proceedings in this committee, was that it applies to both the acts as you describe them. That is the intent of the provision, that the intent to cause death, serious bodily harm, damage to property, and the environment in the first offence and the intent to compel do apply to all of the offence as described.
Conservative
The Chair Conservative Mike Wallace
I'm going to go to Ms. Findlay and then to Mr. Casey, if you want anything further.
Ms. Findlay, you have the floor.
Conservative
Kerry-Lynne Findlay Conservative Delta—Richmond East, BC
Thank you, Mr. Chair.
This amendment would remove the actus reus of acts against a nuclear facility, or an act that causes serious interference with or serious disruption of its operation, from proposed section 82.3.
If, as Mr. Casey suggests, the amendment is being proposed to make it clear that the mens rea or “intent to cause death, serious bodily harm or substantial damage to property or the environment” applies to both the making, possession, use, transfer, etc., and the acts against nuclear facilities and operations, this legislative intent is already clear in the parliamentary record, as stated in both the Senate and the House of Commons.
In fact, as Mr. Koster has just explained, the government amendment in the Senate to remove an extra “who” in the English version of the offence was made to be consistent with the French version. In so doing, it makes certain that the mens rea applied to both actions.
Therefore, in my view, this amendment is simply not necessary.
Thank you.
NDP
Françoise Boivin NDP Gatineau, QC
I don't have any specific issues with the amendment either. I thought it was useless because it did not add anything. All it does is cut the paragraph and continue from there, but I have already read that.
However, in going over the English version, I thought an “or” was missing. I think that's on line 9. It says
“of nuclear material, ”, with a comma, and in my view it should be an “or” if we make it consistent with the French, where there is an ou in the French version. We say, “of nuclear material, a radioactive material, or a device”, and it should be, “of nuclear material, or a radioactive material, or a device”.
That's the only thing. When I was trying to see the intent behind the amendment—because I couldn't see it—I thought maybe he was just adding an “or”, but I thought it was a pretty long amendment for just an “or”. Anyway, I suggest that we should at least....
This doesn't change anything. I don't know if the specialists from the Justice department realize it, or maybe I'm not reading it well. I wouldn't want a bunch of lawyers starting a big debate on a comma versus ou.
Other than that, I don't have a problem with the amendment. I just think it's totally useless.