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.

On the agenda

MPs speaking

Also speaking

Shawn Barber  Acting Director General, Global Partnership Program, Department of Foreign Affairs and International Trade
Matthew Bunn  Associate Professor of Public Policy, Belfer Center for Science and International Affairs, Harvard University
Terry Wood  Senior Co-ordinator, International Nuclear Cooperation, Department of Foreign Affairs and International Trade
Graeme Hamilton  Senior Program Manager / Deputy Director, Global Partnership Program, Department of Foreign Affairs and International Trade
Greg Koster  Counsel, Criminal Law Policy Section, Department of Justice
Carole Morency  Acting Director General and Senior General Counsel, Criminal Law Policy Section, Department of Justice

4:45 p.m.

Conservative

The Chair Conservative Mike Wallace

Are you asking the staff from the Justice department to respond?

4:45 p.m.

NDP

Françoise Boivin NDP Gatineau, QC

If we can accept a friendly.... It's an “or”, unless it creates a third world war within the government and the Justice department. I think the logic of it would make more sense. I don't know what their view is on it.

4:45 p.m.

Counsel, Criminal Law Policy Section, Department of Justice

Greg Koster

The intent of those three things is that it is a class of three. It's nuclear material, radioactive material, or device. It's to be read as a class of three. The way it's dealt with is consistent throughout the bill.

4:45 p.m.

NDP

Françoise Boivin NDP Gatineau, QC

I think there was just an “or” forgotten in the English part.

4:45 p.m.

Counsel, Criminal Law Policy Section, Department of Justice

Greg Koster

To be honest, as I read it here, I don't see that there would be an “or” after “nuclear material”, if, Madame Boivin, that's where you're suggesting it might be missing. I think as it reads now, “nuclear material, radioactive material or a device”, it reads correctly as a class of three.

4:45 p.m.

Conservative

The Chair Conservative Mike Wallace

Mr. Casey, do you have anything further on your amendment?

4:45 p.m.

Liberal

Sean Casey Liberal Charlottetown, PE

I take your point, Mr. Koster, that you feel that the clarification isn't required in that the statute as worded requires the intent that's specified in the first few lines.

The problem that I have is that while it may be the minister's intent and it may be your interpretation, when this is out there, it's for defence lawyers and judges to interpret. The goal of the amendment is simply to make that crystal clear and beyond dispute. It's offered for that purpose.

I do appreciate your interpretation.

4:45 p.m.

Conservative

The Chair Conservative Mike Wallace

Are you moving the amendment, then, I'm assuming?

4:45 p.m.

Liberal

Sean Casey Liberal Charlottetown, PE

Yes, please.

4:45 p.m.

Conservative

The Chair Conservative Mike Wallace

Yes, okay. Amendment LIB-1 has been moved.

(Amendment negatived [See Minutes of Proceedings])

That amendment fails, so amendment LIB-2 also fails.

We are on amendment LIB-3. Do you wish to move that, Mr. Casey?

4:45 p.m.

Liberal

Sean Casey Liberal Charlottetown, PE

Given the vote on the first one, and the rationale for amendment LIB-3 being exactly the same, there's a definition people use if you keep doing the same thing and expect a different result.

4:45 p.m.

A voice

It's called insanity.

4:45 p.m.

Liberal

Sean Casey Liberal Charlottetown, PE

Okay, I'll plead insanity. I'll withdraw it.

4:45 p.m.

Conservative

The Chair Conservative Mike Wallace

Okay, amendments LIB-3 and LIB-4 are withdrawn.

That brings us to Liberal amendment 5, which is different.

Would you like to move it and speak to it?

4:45 p.m.

Liberal

Sean Casey Liberal Charlottetown, PE

Yes, please, Mr. Chair.

Amendment LIB-5 is solely to ensure that organizations that have been designated under the Criminal Code as terrorist organizations are not able to avail themselves of the exemption.

There's an exemption within proposed section 82.7 that affords a defence in an armed conflict under certain conditions, and this would be simply to make it crystal clear that any organization that has been listed under the Criminal Code as a terrorist organization would not be able to avail itself of that defence.

As members of the committee are probably aware, the Iranian Revolutionary Guard Corps was recently listed pursuant to this section. This would ensure that groups such as this would not be able to claim immunity, not be able to claim the protection that's afforded under proposed section 82.7.

4:45 p.m.

Conservative

The Chair Conservative Mike Wallace

Ms. Findlay, would you like to speak to the amendment?

4:45 p.m.

Conservative

Kerry-Lynne Findlay Conservative Delta—Richmond East, BC

Yes. Thank you, Mr. Chair.

The military exclusion language under proposed section 82.7 is similar to that presently set out in section 431.2 and subsection 83.01(1) of the Criminal Code. Adding such language to the military exclusion in this clause, while not adding it to existing law in both the military exclusions in section 431.2, relating to terrorist bombings, and subsection 83.01(1), relating to the definition of terrorist activity, may have unintended consequences for the interpretation of these two existing provisions.

The Supreme Court of Canada, in the unanimous December 2012 Khawaja decision, provided guidance on the application of the military exclusion clause used in the definition of “terrorist activity” in the Criminal Code. In rejecting the application of the military exclusion to the defendant, the court found that, one, the military exclusion clause functions as a defence, and therefore it is for the defence to raise an air of reality to the claim that it applies; and two, the conduct in question must otherwise be in accordance with applicable international law, such as the Geneva Conventions.

As the Khawaja court noted, “The Geneva Conventions prohibit acts aimed at spreading terror amongst civilian populations...”. In order for the defence, under proposed section 82.7 to apply, the act must be lawful under international law.

In my view, it is unlikely that a terrorist entity would meet that threshold. So we do not support this amendment.

4:50 p.m.

Conservative

The Chair Conservative Mike Wallace

Madame Boivin.

4:50 p.m.

NDP

Françoise Boivin NDP Gatineau, QC

I agree fundamentally with what the parliamentary secretary just said, but at the same time,

“can't be too careful”, as the saying goes. Wouldn't it be better to add that even though it seems implied? When you read the exception set out in proposed section 82.7, it is clear that the conflict in question must be legal under the customary international law or conventional international law applicable to the conflict, or to activities undertaken by military forces of a state.

We see that this is already well-defined. However, legislation may contain things that appear to be totally useless but actually reaffirm a principle. Do you really have no reasonable doubt in your mind that this is covered by proposed section 82.7 and requires no amendment?

4:50 p.m.

Conservative

The Chair Conservative Mike Wallace

Is that a question to the...?

4:50 p.m.

NDP

Françoise Boivin NDP Gatineau, QC

It's to the panel.

4:50 p.m.

Conservative

The Chair Conservative Mike Wallace

Perhaps the Justice staff would like to answer.

4:50 p.m.

Counsel, Criminal Law Policy Section, Department of Justice

Greg Koster

I would agree with everything the parliamentary secretary set out in her remarks. I would highlight that there are existing provisions that use that exact language in the code. Perhaps this may have unintended consequences for the interpretation of those provisions.

They haven't been used a lot. They were used in Khawaja, and they've set out the law in that area, but I don't believe the terrorist bombing one has yet to be used. So that is, really, an unintended consequence that could happen.

4:50 p.m.

Conservative

The Chair Conservative Mike Wallace

Have you anything further to say on your amendment, Mr. Casey?

4:50 p.m.

Liberal

Sean Casey Liberal Charlottetown, PE

Any debate about customary international law can be open to multiple interpretations. Again, the objective here is to be absolutely clear that an entity designated as a terrorist entity can't afford itself of this protection.

I take the point offered by the parliamentary secretary that including it in this statute may have an impact on other statutes because they compare one to the other when trying to interpret one or the other, but this is an opportunity for us to provide clarity, which I think we should take.