House of Commons Hansard #161 of the 41st Parliament, 1st Session. (The original version is on Parliament's site.) The word of the day was bullying.

Topics

Questions on the Order PaperRoutine Proceedings

3:15 p.m.

Conservative

The Speaker Conservative Andrew Scheer

Is that agreed?

Questions on the Order PaperRoutine Proceedings

3:15 p.m.

Some hon. members

Agreed.

Nuclear Terrorism ActGovernment Orders

October 15th, 2012 / 3:15 p.m.

Conservative

Lisa Raitt Conservative Halton, ON

moved that Bill S-9, An Act to amend the Criminal Code, be read the second time and referred to a committee.

Nuclear Terrorism ActGovernment Orders

3:15 p.m.

Delta—Richmond East B.C.

Conservative

Kerry-Lynne Findlay ConservativeParliamentary Secretary to the Minister of Justice

Mr. Speaker, I am pleased to participate in the second reading debate on Bill S-9, the nuclear terrorism act. I will begin my remarks by drawing attention to the words of the Belfer Center for Science and International Affairs at Harvard University in its 2011 report entitled, “The U.S.-Russia Joint Threat Assessment of Nuclear Terrorism”. It noted, “Of all varieties of terrorism, nuclear terrorism poses the gravest threat to the world”.

Al-Qaeda, for example, has a long-standing stated desire to acquire weapons of mass destruction. Our government has acknowledged this threat. The March 2010 Speech from the Throne noted the danger to global peace and security posed by the proliferation of nuclear materials and related technology. In light of this threat, the international community and individual countries have taken a number of steps to combat nuclear terrorism. Two key international efforts are the genesis for Bill S-9. It is important to take a moment to discuss these two treaties that are its genesis.

The original Convention on the Physical Protection of Nuclear Material, the CPPNM, was signed by Canada in 1980 and ratified in 1986. It established measures related to the prevention, detection and punishment of offences relating to nuclear material, principally during international transport. In July 2005, state parties to the CPPNM, including Canada, adopted by consensus important amendments calling on states to protect nuclear facilities and material in peaceful domestic use, storage and transport; to provide for expanded co-operation among states; and to criminalize a range of acts involving nuclear material and nuclear facilities. I will refer to this instrument as the CPPNM amendment.

That same year, the International Convention for the Suppression of Acts of Nuclear Terrorism, or ICSANT, was negotiated and adopted by the United Nations General Assembly. It covers a broad range of acts and possible targets, including nuclear facilities, and applies to nuclear material, radioactive material and radioactive devices, and includes provisions relating to interstate co-operation. Given the clear overlap between the criminal law requirements and subject matter of the CPPNM amendment and the ICSANT, Bill S-9 is designed in a way that proposes to implement into Canadian law the criminal law elements of both instruments.

For Canada, as with other dualist states, domestic legislation is required to ratify international treaties. Ratification is the formal act by which we signify our consent to be legally bound by the terms of the conventions. Bill S-9 proposes four new nuclear terrorism offences in our Criminal Code.

First, it proposes an offence for the making of a nuclear or radioactive device, as well as the possession, use, transfer, export, import, alteration or disposal of nuclear material, radioactive material or device, or the commission of an act against a nuclear facility or its operations with the intent of causing death, serious bodily harm or substantial damage to property or the environment. Those who are found guilty of this offence are liable to a maximum term of life imprisonment. I would note that the prohibition against the making of a device was added through an amendment made while Bill S-9 was being studied by the Special Senate Committee on Anti-Terrorism, and I would certainly say that it adds to the strength of this important bill.

Second, the bill proposes an offence for the use or alteration of nuclear material, radioactive material or device, or the commission of an act against a nuclear facility or its operations with the intent of compelling a person, a government or international organization to do or refrain from doing any act. This offence also carries a maximum penalty of life imprisonment.

Third, Bill S-9 also calls for an offence for the commission of an indictable offence for the purpose of obtaining nuclear or radioactive material or device, or access or control of a nuclear facility. The offence is designed in this way to comply with the requirements of both the CPPNM amendment and the ICSANT to specifically address the commission of various crimes, such as theft and robbery perpetrated to obtain nuclear or radioactive material or a device.

As a result, this offence would require the Crown to prove beyond a reasonable doubt that both the underlying offence was committed, with its requisite elements, and that it was done with the intent to obtain nuclear material, radioactive material or a device, or to obtain access to a nuclear facility.

Again, given the seriousness of such an offence, the proposed penalty is a maximum term of life imprisonment.

The fourth and final offence proposed in Bill S-9 addresses threats to commit one of the above nuclear terrorism offences. Both the CPPNM amendment at article 7(9) and the ICSANT at article 2(2) require states to criminalize the threat to commit one of the treaty offences.

The Criminal Code does contain an offence of uttering threats, found at section 264.1. However, this offence has a maximum punishment set at five years, which was not seen as severe enough in the case, for example, of threatening to unleash a radiological dispersal device, or dirty bomb, in public. The maximum penalty proposed for this offence is 14 years' imprisonment.

It is important to state that the offences in Bill S-9 and their very specific intent requirements have been set out to be absolutely clear so that lawful activity is not captured. In other words, these proposed four new offences would not capture lawful medical procedures involving radiation, the lawful exchange of material or devices or other lawful activity in the nuclear industry.

These four offences make up the essential elements of Bill S-9, but there are other important areas that require brief comment.

First, the terms “nuclear material”, “radioactive material”, “nuclear facility”, “device” and “environment” are defined in Bill S-9. All of these definitions are based either on existing law or on the CPPNM amendment and the ICSANT.

Second, as is consistently the practice in treaties of this nature, countries are called upon to assume extra-territorial adjudicative jurisdiction, which means ensuring that our Canadian courts have the authority to try offences committed outside of Canada in certain situations. It is for this reason that Bill S-9 would provide for jurisdiction to try these new offences in situations, for example, where the offence is committed outside Canada but by a Canadian, or when the person who commits the act or omission outside Canada is later present in Canada.

Third, given that the majority of Criminal Code offences are prosecuted by the provinces and territories, as is the established practice for other terrorism offences, Bill S-9 would provide the Attorney General of Canada with concurrent prosecutorial authority along with the provinces and territories over these new nuclear terrorism offences.

In addition, as called for in the treaties and consistent with Canadian law in this area, Bill S-9 contains a military exclusion clause. These amendments do not apply to the activities of the Canadian Forces and to persons acting in support of the Canadian Forces who are under the formal command and control of the Canadian Forces while in the performance of their official duties.

The military exclusion language used in both the CPPNM and ICSANT is similar to that used in the International Convention for the Suppression of Terrorist Bombings, which is presently in Canadian law at section 431.2 of the Criminal Code.

Moreover, it is significant to note that Bill S-9 would add both the CPPNM amendment and the ICSANT to the list of existing terrorism treaties making up the first part of the definition of terrorist activity at section 83.01(1)(a) of the Criminal Code.

The significance of this addition is that by virtue of the operation of the definition of terrorist activity, a number of other provisions would apply to those charged with the nuclear terrorism offences. These provisions include a reverse onus at bail hearings, the availability of one-year wiretap authorizations as well as the dispensation of the requirement to demonstrate investigative necessity.

In addition, for this terrorism offence, the law would provide for the application of the consecutive sentencing regime for multiple terrorism offence convictions and an increased period for parole ineligibility.

All of these powers currently exist in Canadian criminal law and so the only change brought about by Bill S-9 is the addition of the nuclear terrorism offences to the pool of offences to which these tools apply.

Outside of the criminal law, the physical protection measures contemplated in the CPPNM amendment are already in place in Canada.

Under the Nuclear Safety and Control Act, the Canadian Nuclear Safety Commission is responsible for setting physical protection standards in Canada and ensuring that those standards are met. The nuclear security regulations set out the physical protection measures that licensees must implement to meet minimum security standards. However, due to the pressing threat posed by the possibility of terrorists acquiring dangerous nuclear or radioactive materials or devices, the securing and disposing of these materials remains a high priority for Canada and its international partners.

In this regard, at the invitation of United States President Obama, 47 world leaders, including the Prime Minister, participated in the inaugural April 2010 Nuclear Security Summit held in Washington. At this summit the leaders agreed that strong nuclear security measures were the most effective means to prevent terrorists, criminals or other unauthorized actors from acquiring nuclear materials, and in this regard the summit work plan called upon participating states to ratify and work toward achieving the universal implementation of the CPPNM amendment and the ICSANT.

The second Nuclear Security Summit was held in March of this year in South Korea. The summit again brought together world leaders to exchange views on the threat of nuclear terrorism and the pressing need to further develop and implement internationally coordinated efforts to enhance nuclear security worldwide. World leaders, including our Prime Minister, joined together to state:

Nuclear terrorism continues to be one of the most challenging threats to international security. Defeating this threat requires strong national measures and international cooperation given its potential global political, economic, social, and psychological consequences.

The summit produced a comprehensive action plan aimed at preventing nuclear terrorism, with emphasis on the management of nuclear materials, protection of nuclear facilities, prevention of trafficking of illegal nuclear materials and the promotion of the universality of key nuclear security instruments.

Therefore, it will come as no surprise that Canada is not alone in pursuing domestic legislation on this front. The United Kingdom became a state party to the CPPNM amendment through amendments made by its Criminal Justice and Immigration Act, 2008, and the ICSANT through the Terrorism Act, 2006. In addition, Australia modified its laws to achieve ratification through the Non-proliferation Legislation Amendment Act, 2007, and more recently, the Nuclear Terrorism Legislation Amendment Act, 2012. I would also note that the United States has a bill before the United States Congress aimed at domestic ratification.

Upon review of these foreign precedents, members will note many similarities in how countries, including Canada, through Bill S-9, have adopted or proposed laws to implement the criminal law requirements of the CPPNM amendment and the ICSANT. These specific efforts are only part of the international community's efforts at universal ratification. Indeed, there are currently 55 states parties to the CPPNM amendment and 79 states parties to the ICSANT.

Without a doubt, Canada strongly supports the work of the International Atomic Energy Agency. Canada was in fact one of the architects of the CPPNM amendment and the ICSANT, and we are encouraged by the adoption of these two conventions by a significant number of countries and we actively encourage others to follow through on their commitment to become parties as Canada is doing.

Bill S-9, once passed and followed by the ratification of the CPPNM amendment, as well as the ICSANT, would give credence to Canada's commitment to the strengthening of the global national security architecture. It would provide Canada with additional tools to counter this threat as well as enhance our ability to work with partners to mitigate the consequences should this threat ever materialize.

On this last point, it is important to note that both international instruments have specific obligations relating to extradition and mutual legal assistance that would be triggered in the event of a nuclear terrorism investigation or offence. While the global spread of the use of nuclear technology and nuclear materials brings great benefits, the increasing number of users also creates vulnerabilities. Terrorists will seek to exploit any gap in security anywhere in the world and it is our duty to ensure that Canada has the laws in place to ensure that we will not present any such opportunities.

Bill S-9 is both targeted and timely. With the adoption of specific nuclear terrorism laws and the eventual ratification of these two important counterterrorism treaties, Canada can build on and demonstrate its continued commitment to secure nuclear materials as well as to punish those who would inflict unimaginable harm.

Bill S-9 sends a strong message to the global community that Canada is a willing partner in the fight against terrorism and is committed to measures that contribute to global security.

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3:30 p.m.

NDP

Françoise Boivin NDP Gatineau, QC

Mr. Speaker, I thank my colleague from Delta—Richmond East, who managed to turn a rather dry, complicated and very technical bill into something more easily understood. I certainly appreciate the urgency and importance of this bill, which we will support at second reading.

Why has the government not made this a priority before now? For the past five years now, we could have been honouring our commitments under international treaties. Why did it take five years?

Nuclear Terrorism ActGovernment Orders

3:30 p.m.

Conservative

Kerry-Lynne Findlay Conservative Delta—Richmond East, BC

Mr. Speaker, my colleague and I work together very well on the justice and human rights committee and I continue to welcome her input on these important legislative measures.

The fact is that there were attempts to bring forward many of these measures during the time of minority Parliaments but they were not accepted. Now we are in a majority situation and we are bringing them forward. I hope the opposition members will see the need for this and understand the legal effect of ratifying our international obligations. Ratification is the formal international act by which Canada signifies its consent to be legally bound by these conventions, which we were part of the architecture of them as well as agreeing with them. This is a real and continuing threat and we are now taking our place among our international partners.

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3:35 p.m.

NDP

Craig Scott NDP Toronto—Danforth, ON

Mr. Speaker, I agree with my colleague from Gatineau. That was a very helpful and extremely clear introduction of the bill by the parliamentary secretary.

The International Convention for the Suppression of Acts of Nuclear Terrorism includes, among the listed acts that are an offence or need to be made an offence in domestic law, the making of a radioactive device. That was not originally in the government's bill before the Senate and the Senate has made an amendment to add that offence to the bill.

Could the government explain why that rather obvious offence was not included in the original bill?

Nuclear Terrorism ActGovernment Orders

3:35 p.m.

Conservative

Kerry-Lynne Findlay Conservative Delta—Richmond East, BC

Mr. Speaker, I cannot speak to why it was not included originally. What we are dealing with now are four new offences. It is important for all of us to understand, members considering this, as well as the Canadian public, that is what is happening here with this bill.

There would be an offence for the possession, use, transfer, export, import, alteration or disposal of nuclear material, radioactive material or device, or the commission of an act against a nuclear facility or its operations. There is an offence for the use or alteration of nuclear material, radioactive material or device, or the commission of an act against a nuclear facility or its operations. There is an offence for the commission of an indictable offence for the purpose of obtaining nuclear or radioactive material or device, or access or control of a nuclear facility. There is also an offence for a threat to commit one of those offences.

As I said in my speech, the threat here can bring about an unimaginable toll, one we do not want to ever have to deal with on Canadian soil. We need to take these strong preventive measures and join our global partners.

Nuclear Terrorism ActGovernment Orders

3:35 p.m.

NDP

Françoise Boivin NDP Gatineau, QC

Mr. Speaker, another question comes to mind after listening to the hon. member for Delta—Richmond East.

How does the government plan to deal with the problems that could result from the fact that these new Criminal Code offences will have a broader scope than the offences included in separate international agreements?

Nuclear Terrorism ActGovernment Orders

3:35 p.m.

Conservative

Kerry-Lynne Findlay Conservative Delta—Richmond East, BC

Mr. Speaker, as I said in my speech, one of the proposed methods is to have concurrent prosecutorial authorities for the attorney general of Canada, as well as the provinces and territories which are the ones, under our constitution, that generally administer the law. They are the ones applying what terrorism offences exist now. That is one of the ways we will be dealing with this.

This is where we are sort of partnering Bill S-7 and Bill S-9 together. We are taking steps to bring this together now in order to deal with it effectively and in a timely way. That is the understanding on the concurrent jurisdiction.

Nuclear Terrorism ActGovernment Orders

3:35 p.m.

NDP

Craig Scott NDP Toronto—Danforth, ON

Mr. Speaker, the nuclear terrorism act, currently in the form of Bill S-9, would amend the Criminal Code to align our law with obligations under two international agreements, as the parliamentary secretary has so ably outlined. One is ICSANT, the International Convention for the Suppression of Acts of Nuclear Terrorism of 2005, and an amendment to another treaty in 2005, the Convention for the Physical Protection of Nuclear Materials.

In broad terms, those two instruments, along with the underlying Convention for the Physical Protection of Nuclear Materials, deal with the protection of radioactive material, nuclear material and nuclear facilities, and the protection from nuclear or radioactive devices.

The creation of criminal law offences is one aspect of the protection scheme, alongside ensuring there is a broad, in essence, kind of universal jurisdiction to prosecute for most aspects of these offences.

The present bill, Bill S-9, is overdue if one looks at the dates of the two instruments, both 2005, although this delay is mitigated by the fact that Canada is not yet bound to either instrument because it has not yet ratified. We have signed but that is not the same thing as ratification. The passage of Bill S-9 will put us in a position to be in compliance and, thus, to ratify.

However, why we have left this combined ratification and implementation for so long does remain a mystery to me, despite the answer just given by the parliamentary secretary. This is not a controversial bill from any side of the House and I cannot imagine a minority Parliament would have held it up.

As I have already indicated, the NDP very much supports the bill going to committee. We will vote for it at second reading and we expect to do so at third reading. Overall, we are completely behind the bill as a necessary measure as part of Canada's international co-operation against threats related to nuclear terrorism of various forms.

In a world of heightened technological sophistication that increases the ability to steal material, attack installations, make radioactive devices and so on, it is impossible to overstate the importance of such co-operation and, indeed, Canada's role in that co-operation.

We wish to see this bill become law as rapidly as possible. At the same time, we also emphasize that some close technical scrutiny of the bill in committee is still called for to ensure that it has been drafted in the best way to fulfill our obligations under these two treaties so that we can then go on and not be in non-compliance once we ratify.

It may be that some slight amendments will be needed in committee. I say this for three reasons.

The first reason is that there was what seems to have been a major omission in the government's bill that went to the Senate before coming to us. What was that omission? I referred to it in my question just now to the parliamentary secretary. Whereas ICSANT's article 2(1)(a) includes the offence of making a radioactive device, Bill S-9, in its original form before the Senate, did not include this activity despite mentioning every other conceivable form of activity that also was in the two treaties: possession, use, transport, export, import, alteration and disposal.

The Senate caught this omission, assisted, no doubt, by an alert Library of Parliament preliminary summary of the bill, and the mistake has been rectified in what we now have coming from the Senate.

However, and this is my main point, the situation does give one reason to pause and ask a question. If something as significant as making a radioactive device, which appears clearly in the text of the relevant treaty, was missed, has anything else been overlooked, or has there been some other slippage in the tightness or the accuracy of the drafting of this bill? The committee needs to ensure this is not the case.

The second reason there may be a need for amendments following directly on from the just asked question is that the commitment may need to consider amendments in that there is some reason to believe that parts of Bill S-9 have been drafted in terms that are not just more general in their phraseology than the specific treaty articles they are meant to implement but are broader in the sense of criminalization of more than is required by the treaties.

I will, in a moment, outline where this may be a problem in Bill S-9, but a prior problem may be that the Minister of Justice and officials before the Senate committee do not appear to agree that there are any such aspects of over-breadth. The reason this is a problem is that such denial makes it impossible to go to the next stage of analysis, which is to ask whether over-breadth in relation to what is strictly required by the treaties is actually of any real concern.

If the treaties permit state parties to go further in what they criminalize, and the treaties probably do permit this, then it becomes a matter of sound public policy discussion as to whether we do wish to go further. However, if the government denies that Bill S-9 does go further, we cannot even have that discussion.

The third reason we may need to entertain a small amendment or two in committee is that there may, and I emphasize the word “may”, be under-breadth in terms of the coverage of one aspect of Bill S-9 offences. Now I may have misread the corresponding treaty provisions in relation to the sections of Bill S-9 in question, but one reading of them is that Bill S-9 may not go as far as required in one respect. If this is the case, then our legislation would put us in non-compliance after ratification. I will identify this possible glitch in a moment.

I will now proceed with a bit more detail on these points to illustrate why it is that we may have to pay some close attention in committee.

First, on the issue of potential over-breadth, and I do apologize to everyone listening that this will be as technical as it is starting to sound. In particular, with respect to proposed sections 82.3 and 82.4, article 2 of ICSANT is rather inelegant in expressing the need for specific intent on top of general intent for some of the offences mentioned. It talks about any person intentionally possessing, using, making a device and so on with the intent to cause death or serious bodily injury or with the intent to cause substantial property damage or harm to the environment.

The first point to note is that this double use of intentionality does cause a certain degree of inelegance. Bill S-9 does not repeat that. It uses simpler language, for the most part going straight to the specific intent formulations. This seems wise.

However, the problem that then appears on one reading of proposed sections 82.3 and 82.4 is that the specific intent formulations of the ICSANT treaty regarding use or damage to a nuclear facility are not reproduced in Bill S-9. Instead, proposed sections 82.3 and 82.4 of the bill merely assume a general intent standard. This is because, and again this is a very technical point, in proposed sections 82.3 and 82.4 the acts listed after the words “or who commits” are cut off from the specific intent references earlier in the provision.

In a similar vein, the amendment to the CPPNM treaty on acts directed against nuclear facilities also has a specific intent requirement that Bill S-9 does appear to omit.

Here is another point about over-breadth that I will simply state as a very clear problem, as there is no doubt or debate about this one. The references to crimes of threat in Bill S-9 go further than necessary under the treaties. This is very helpfully laid out in the very well put together legislative summary provided by the Library of Parliament.

Finally, there is a provision in Bill S-9 that talks about committing an indictable offence with intent to obtain material or a device versus the treaty provisions, which actually list the specific other forms of offence that are attached to this search for intent to obtain material or a radioactive device.

We have created a much broader tacking-on of this notion of committing any indictable offence as opposed to the offences specifically listed in the treaties: theft, robbery, embezzlement, fraudulent obtaining and so on.

All of this is as dry as the hon. member for Gatineau promised it would be. However, I did want to get this on the record so that it helps us at the committee stage to ask whether this is a correct reading, and if so, what needs to be done about it.

There is something quite significant however about the fact that if there is over-breadth in any respect, there is a multiplier effect that occurs throughout Bill S-9. That is because a number of other provisions tack themselves onto the offences. Four of them in particular are worth mentioning. One is the extraterritorial scope of the offences. The second is that they enter into the definition of terrorist activity, which is thereby broadened. The third is that the electronic surveillance provisions of the Criminal Code would be kicked in by the offence definitions, as are fourthly, the DNA sample provision of the Criminal Code.

The issue is not that these offences are simply more broadly worded in and of themselves, which may strike people as a slightly semantic issue. It is how one multiplies the potential significance of that across all of the other provisions I have just listed. It is what I call an amplification effect.

I mentioned that there is possibly an odd twist here. There may be one instance of narrowing our treaty obligations in Bill S-9 in such a way that might mean that Bill S-9 does not go far enough and, thus, may put us in breach of the treaty.

The new CPPNM amendment in article 7(1)(d) criminalizes “the intentional commission of...an act which constitutes the carrying, sending, or moving of nuclear material into or out of a State without lawful authority”. Yet proposed section 82.3 of Bill S-9 would make the import and export offence subject to the specific intent portions of that section, which are not in Article 7(1)(d) of the treaty amendment. This could possibly be a misreading of the treaty amendment on my part or of what is intended by Bill S-9, but there does appear to be the possibility that we have under-inclusion in that respect.

All of this adds up to the fact that the committee will need to pay some attention to whether or not this legislation has been drafted as well and as tightly as needed, particularly in light of the fact that in asking questions of the parliamentary secretary just now, the responses that came back were fairly general. It is not at all clear that the government has its head around these problems, despite the warning of some of these questions being asked in the Senate.

I would like to say a few words about parliamentary democracy as it relates to this legislation. One might assume that I am referring to the fact that the bill started in the Senate, the unelected, second chamber of our Parliament. In fact, that is not my immediate concern. A much more real concern and affront to this chamber is that Bill S-7, on which debate started earlier today, first went to the Senate.

Having listened to myself for the last 10 minutes, Bill S-9 is very technical in nature. It may well be the kind of bill that can fruitfully be started in the Senate so that the House benefits from some preliminary cleaning up and does not have to allocate undue time to studying the bill. The fact that the Senate caught the omission of the making a device offence may actually prove my point, in part.

My immediate democracy concern does not relate to the Senate. Rather, it relates to the methods we use in Parliament to implement treaties and statutes. Again, I am not referring here to the mess that many in this room know exists with respect to the lack of consistency in the way that statutes are drafted to accomplish implementation of a treaty.

By one count in a law journal article I read some time ago, there are well over a dozen methods employed, ranging from verbatim reproduction of treaty text to very general language that does not even hint at there being an underlying treaty motivating the legislative change. While this is an important issue and while it does bear directly on how Bill S-9 may be over-broad in parts, I will leave that for another day.

Therefore, I turn to what my concern actually is.

What I want to discuss is much more procedural in nature. The way in which bills are introduced, presented and reported from stage to stage is close to a travesty when it comes to the twin goals of transparency and accountability. Parliament, and thereby the Canadian public, must be given every opportunity and tool to be able to understand precisely what is in a bill and how that content relates, in this context, to an underlying treaty or another international instrument such as a Security Council resolution.

However, that is not what happens here in Canada. Treaty-implementing bills almost always get plunked onto Parliament's desk with nothing resembling an overview, let alone a road map, from the government of how a statute's provisions line up with related treaty provisions. Parliamentarians end up reading a bill as if they have a jigsaw puzzle to solve. They track down the related treaty and then try to connect the dots between the treaty and the statute with absolutely no help from the government by way of a commentary that could easily provide explanatory charts showing side-by-side text so that Parliament's role of scrutinizing critically and effectively can be facilitated.

Instead, valuable energy is wasted at the preliminary stage of understanding what is going on in the relationship between the statute and the treaty text. As some members will be aware, I am speaking as someone who was not only a law professor in a previous life but has been an international law scholar for over 20 years. Therefore, if there is anyone in a position to put the jigsaw puzzle together it would be someone with my background. However, even I find it very frustrating.

More importantly, I find it undemocratic. Why? Anything that makes legislative details needlessly inaccessible gets in the way of clear and focused analysis and debate, both by and among parliamentarians, and in terms of how journalists and the public in general will have difficulty grasping analysis and debate if there are no well-presented documents that make the subject of analysis and debate reasonably easy to follow. At multiple levels, democratic scrutiny is undermined and the distance between Parliament and society is exacerbated.

Without dwelling further on the details of an ideal system of clear and transparent presentation of treaty-implementing bills, which this bill lacks, at minimum the government must be required to include alongside a bill a document that does at least the following three things.

First, the document should show the text of the treaty and statute in a side-by-side comparison that makes clear what the statute is intended to implement.

Second, the document should explain and justify the method of implementation that has been chosen. For example, if general language is used or if a treaty text is reproduced nearly but not entirely in verbatim form from the treaty, we need to know why that decision was made.

Finally, the document should provide a clear account of what is not in the implementing bill by reason of the fact that either Canadian law may already cover off the area, the treaty provisions in question may only operate on the international plain or the matter must be dealt with by a provincial legislature.

In order to appreciate that this is not simply a cranky protest, all we have to do is to consider what everyone knows about how inaccessible even basic bills are when presented to Parliament in terms of how well we can understand the underlying statute that is being amended. We also can refer to budget bills that do not come anywhere close to meeting OECD transparency guidelines.

In this immediate context, my main point is to draw attention to one problem we have with a very procedural dimension of accountability in this Parliament, which is not alone in the way we deal with legislation.

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3:55 p.m.

NDP

Françoise Boivin NDP Gatineau, QC

Mr. Speaker, I quite liked the speech by my colleague from Toronto—Danforth, especially the last part, since the first part had to do with the technical aspects. We understand one another because have studied this matter at length. I was especially glad to hear him share his concerns over how democratic this process is. I do not want to issue a challenge to my colleagues, but this bill is not an easy read. I know what my colleague means when he says that it might be a good idea for the department or the minister, when he introduces this type of bill, to provide explanatory notes that are more complete than those that are usually included.

I would like to share something Senator Dallaire said during the review of Bill S-9 in the Senate. The hon. member will be able to make additional comments, because Senator Dallaire shared the same view:

I wish to concisely come back to the point of all these different bills coming at us. [We reviewed Bill S-7 this morning and now we are looking at Bill S-9.] We are covering the bases that are presented to us, but there is no feeling, even within reading the report, the 2010 report, of what the delta of gaps are in the security with regard to terrorism or anti-terrorism. It seems to me that it is fine to go through and do our legislative duty; however, without that framework, it seems to me that, as a committee, we are a bit ill-equipped to get a warm, fuzzy feeling that we are going down the road that we feel maybe should be done expeditiously enough by the department or by the ministries with regard to anti-terrorism.

It makes me shudder to read such quotes from people who have spent hours and hours studying the bill. I would like my colleague to say a few words about this.

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4 p.m.

NDP

Craig Scott NDP Toronto—Danforth, ON

Mr. Speaker, the points are extremely well put. I had not been aware of that passage from Senator Dallaire.

In general, my point, and the point Senator Dallaire made in some frustration and that the member echoed, is that there is a certain kind of almost archaic tradition that governs many affairs in the House, but some things are not traditions that we need to keep. They are long past their usefulness in ages when we had less complex bills. For example, with respect to treaties, the fact is, and this may be an erroneous statistic, something in the region of 50% of statutes have some connection to an underlying international instrument or treaty. Therefore, the complexity we are dealing with is not just amending Canadian laws but also looking at background treaties and we do not get any kind of guidance that allows us to do our job. We spend too much time actually getting up to speed as opposed to engaging in the critical task that we should be as legislators.

Therefore, the point from Senator Dallaire about the 2010 report not leaving him all that much wiser is another instance of how parliamentarians can be frustrated by not having enough basis on which to make a decision. I would refer to an intervention from my colleague from the Liberal Party earlier in the debate on Bill S-7 when he made almost the same point with respect to parliamentarians' knowledge around terrorism and its incidence and whether we actually did not need a specific process in Parliament for a certain number of parliamentarians to be informed in ways that none of us were at the moment.

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4 p.m.

NDP

Paulina Ayala NDP Honoré-Mercier, QC

Mr. Speaker, there is something that worries me. I remember, in the past, in my experiences in Chile—those were difficult years—that someone could be imprisoned just because he was suspected of something. And that is how the story started.

Here, if I understand correctly, someone can be arrested because he is suspected of something. There is a danger here for the country. There is no proper trial. There is not really any evidence behind it all, and the person is only suspected of something.

Moreover, a judge may think that someone should enter into an agreement. If the person does not agree and does not comply with the agreement, he or she can be put in jail. This brings back bad memories of things that happened in my life.

There is a lack of respect for fundamental rights. I would appreciate it if my colleague would go a little deeper into this issue.

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4:05 p.m.

NDP

Craig Scott NDP Toronto—Danforth, ON

Mr. Speaker, I regret I will not be able to add a lot to the excellent answers given earlier today by my colleague from Gatineau, because that deals mostly with Bill S-7, but the member is correct to ask the question simply because the government is presenting the two bills as a package.

The reason we are very concerned about these provisions dealing with recognizance and potential detention, if one actually refused to accept the conditions or breaches the conditions, is precisely that the standard is much lower than it would be for any other kind of process in terms of criminal prosecution. The basic concern is that it is a much lower threshold. I do not have the historical experience the member has drawn on in the case of Chile to know how easily in some countries and some times and some contexts a system like this could be abused.

Regretfully in the Chilean context, at least for a large part, probably no system at all was needed for the abuse to occur because there was no rule of law respected. What we would experience here would be a kind of slippage. The concern would be that this kind of provision would be used in a way that slowly would become wider and wider than anyone thought it should be from the beginning.

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4:05 p.m.

NDP

Françoise Boivin NDP Gatineau, QC

Mr. Speaker, I asked the parliamentary secretary a question a little earlier, and her answer surprised me. She said that it took five years for the government to introduce Bill S-9 and that it did not need Bill S-7 in order to comply with the international treaties that it had signed.

I would like to hear from my colleague about this. How does he explain this time frame, when we are being told here that the bill is so necessary and so important it must be passed quickly? This is certainly something that we are going to hear on a regular basis from witnesses suggested by the Conservative members.

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4:05 p.m.

NDP

Craig Scott NDP Toronto—Danforth, ON

Mr. Speaker, I cannot say anything other than it remains a bit of a mystery. The member's fundamental point is correct. We do not need Bill S-7. The government is choosing to bring them together, but we do not need Bill S-7 to bring forward Bill S-9. Bill S-9 is indeed extremely important, but it is also quite technical and it is not facing any resistance in the House. It would not have faced any resistance in a minority government.

The best I can imagine is that Canada has been reminded of the fact that its ratifications are outstanding for these two instruments and that it had better get its house in order. The Prime Minister had to make a recommitment to ratifying the instruments recently in Korea and somewhere along the line the system clicked into gear, even though that should have happened four to five years ago.

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4:05 p.m.

Liberal

Francis Scarpaleggia Liberal Lac-Saint-Louis, QC

Mr. Speaker, the previous member seemed to imply that he might have been delivering a cranky protest, However, if that is the case, I would urge him to protest crankily more often because it was a very erudite speech. It informed the House on so many aspects of what is an important bill, despite its dry nature.

I knew this, but I was quite interested to hear it repeated in the House by the hon. member who spoke before me, that something so fundamental as an offence against making a nuclear device was left out of the bill. It really shakes our confidence when something so fundamental that should almost be central to a piece of legislation like this is actually left out of the bill. I commend the Senate on catching that omission. I assume that if the bill had been brought to the House before the Senate, we would have caught it as well and if we had not, that the Senate would have been as good at catching it later on instead of at the very start.

I also take the point of my hon. colleague that it would help if legislation as complex and technical as this were accompanied by some notes that would allow us to clearly link its provisions to important international treaties that attempted to bring the world together in common action on such an important issue as nuclear terrorism.

In regard to that point, this is a general problem that we have in the House. We have heard how it is very hard for parliamentarians to truly understand the spending plans of the government because the documentation is not available. In fact when the Parliamentary Budget Officer attempts to add clarity to the government's spending plans, he meets a brick wall that is put up by the government. I do not think in this case the intent was to somehow make the issue opaque, it just was not something the people preparing the communications materials or the bill itself thought of doing. This is something we have to do in the future.

The reason it is important to link the bill clearly with our international instruments designed to prevent the threat of nuclear terrorism is that it is very important for Canadians to understand there are legal solutions to some of these fierce international problems that face the world and that we hear discussed on the news every night. For example, many Canadians are probably not aware that the United Nations is active on these kinds of issues, creating a legal framework for co-operation within which international legal action can be taken to dissuade, say, rogue states from pursuing very threatening and destructive agendas.

As an aside, I would like to draw attention to an article that my colleague, the member for Mount Royal, published in the Montreal Gazette not long ago on the subject of Iran's behaviour on the international stage. The headline was, “We have juridical remedies to halt Iran's genocidal threat”. He talks about Iran's nuclear program. What he is saying is that certain actions like recalling our diplomats are important symbolic actions, but at the end of the day all we have to hang our hat on really is law, not only domestic law but international law. He suggests a number of ways whereby Iran could be coaxed into better behaviour. These ways involve going to the Security Council and asking it to make complaints to the International Criminal Court and so on.

I would draw attention to the point raised by the previous speaker, which is that we have had seven years, to ratify the International Convention on the Suppression of Acts of Nuclear Terrorism and the amendment to the Convention on the Physical Protection of Nuclear Material. However, the law and order government is a government that acts tough on the international stage and takes all kinds of symbolic actions but seems to be leaving behind the maybe less interesting, less headline making actions that need to be undertaken by any country that really wants to call itself a citizen of the world and call itself an important player at the United Nations.

Maybe the government does not really want to be as active at the United Nations as it could be. Maybe it does not necessarily want Canada to take the multilateral route as often we used to. Nevertheless, it is an important route to take.

As I say, Canadians are sitting at home, we are sitting here in this Parliament and we are not aware of the options that are available to combat nuclear terrorism because we are unaware of the fact that these treaties exist. In fact, there are four UN resolutions and international treaties relating to nuclear terrorism that I believe deserve some mentioning here.

First, we have the United Nations Security Council resolution 1373, which, I believe, was adopted in 2001. That requires member states to adopt certain anti-terrorism legislation and policies, including those to prevent and repress the financing of terrorist acts; freeze the financial resources available to terrorist organizations; suppress the supply of weapons to terrorist organizations; as well as deny safe haven to the those who finance, plan, support or commit terrorist acts. It also calls on member states to become party to and fully implement the relevant international conventions and protocols related to terrorism as soon as possible.

That resolution was passed in 2001. I am pleased to say that the Anti-terrorism Act of 2001 was essentially a response to that United Nations Security Council resolution. The government of the day did take that resolution seriously and started to move in the direction of what that resolution called upon national governments to do.

A second resolution adopted in 2004 is another one worth mentioning. It is the United Nations Security Council resolution 1540, which focused specifically on non-proliferation of weapons of mass destruction. It asked member states to take steps to prohibit non-state actors from acquiring nuclear weapons and to put in place additional controls on nuclear materials.

Resolution 1540 also asked member states to: (a) adopt and enforce effective domestic controls to prevent the proliferation of nuclear chemical and biological weapons; (b) adopt legislation to prevent the acquisition, use, or threat of use of nuclear weapons by state or non-state actors; (c) to extend such criminal legislation to apply to citizens extraterritorially, which is one of the features of Bill S-9; and (d) include internal waters, territorial waters and airspace in the territory from which nuclear weapons are prohibited.

This is very important because we know that we are vulnerable. Our ports are vulnerable to the threat of nuclear terrorism. I know that since 9/11 the government has worked with port authorities, local police forces and other authorities to make it, hopefully, impossible for a nuclear terrorist attack to occur in a port, and Canadians should feel somewhat reassured by that.

That is another important issue that we obviously need to be vigilant about.

A third instrument and one that was mentioned before is the International Convention for the Suppression of Acts of Nuclear Terrorism, ICSANT, adopted in 2005. This was the first international convention related to terrorism open for signature after 9/11. It builds on both the Convention on the Physical Protection of Nuclear Material and the International Convention for the Suppression of Terrorist Bombing.

ICSANT is comprehensive and contains detailed language on what particular aspects of nuclear terrorism should be criminalized. ICSANT is the inspiration for the bulk of this bill, Bill S-9. Several ICSANT articles are codified in Bill S-9, such as article 2 which outlines new offences created in section 82 of the bill, article 4 which exempts the acts of armed forces during conflicts, article 5 which provides that the offences in the treaty be appropriately punished given the grave nature of these offences, and article 9 which allows states to establish extraterritorial jurisdiction in order to prosecute nuclear terrorism.

Finally, we have the amendment to the Convention on the Physical Protection of Nuclear Material which was also adopted in 2005 and came out of a diplomatic conference convened in July 2005, three months after ICSANT opened for signature. The convention was signed in Vienna, Austria in March 1980. It is the only legally binding undertaking in the area of the physical protection of nuclear material and establishes measures related to the prevention, detection and punishment of offences relating to nuclear material.

The meeting in 2005 was meant to update and strengthen the convention's provisions. Obviously Bill S-9 is helping to bring Canada into line with the convention so that we can ratify it.

It is a very technical bill and I know there will be many important technical points raised at committee. We hope that the government understands that it is complicated and that parliamentarians are grappling with it, including Senator Dallaire, an eminent Canadian who has written many books, who knows a few things about international law and who has trouble in many ways wrapping his great mind around this bill.

We hope that the officials in the department who drafted the bill will see to it that committee members are well briefed and that officials appear for a lengthy period of time to explain the bill and answer questions that we might have.

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4:20 p.m.

NDP

Françoise Boivin NDP Gatineau, QC

Mr. Speaker, I am still trying to get answers to my questions and up until now, I am not sure the answers have been given. I am curious to find out what the Liberals think of the fact that it took five years. When we put the question to the parliamentary secretary, she said it was because at that time the government was in a minority situation. In terms of Bill S-9, I have not seen any opposition to it and I did not see any opposition in previous years either, except that it does not seem that any bills were introduced then either.

I wonder what my hon. Liberal colleague thinks about this. In his view, why did the Conservatives take so long to introduce Bill S-9?

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4:20 p.m.

Liberal

Francis Scarpaleggia Liberal Lac-Saint-Louis, QC

Mr. Speaker, it is perhaps because, in those days, the government was more concerned about generating vote-winning headlines. In addition, this is a very technical bill that will not make headlines, despite the fact that it is very important. It is ironic, because we know the government really likes to talk about its law and order agenda. But when it is time to take real action, which is not as interesting in terms of political communications, it puts off taking action for too long and at some point it really must act. This is not a bill that is going to make headlines. This is a government that is very concerned about political communications.

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4:20 p.m.

NDP

Craig Scott NDP Toronto—Danforth, ON

Mr. Speaker, I would like to return to a question I asked earlier when we started the debate on Bill S-7. The hon. member made a very interesting suggestion about the need for a parliamentary committee that would have access to more information on the state of threats, specifically terrorist threats, to the country. I could well assume that would include elements related to Bill S-9 as well, with specific focus on the state of protection of nuclear facilities, radioactive material and so on.

I wonder if the member sees that connection and whether he could elaborate or offer some thoughts on how such a committee could actually assist, at least the understanding of Parliament, on the whole question of nuclear terrorism.

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4:25 p.m.

Liberal

Francis Scarpaleggia Liberal Lac-Saint-Louis, QC

Mr. Speaker, totally there is a connection because this is obviously a domestic piece of legislation. It is inward-looking. It is about adapting our legislative framework to our obligations under international treaties. However, in order for Canada to help combat nuclear terrorism, we need to work with our allies. We need to share information. For example, we are a party to the global initiative to combat nuclear terrorism which emphasizes the importance of member states assisting other states to meet their commitments and so on.

We might like to know, in an in camera session of a special committee, how the government is working with other nations. We would also like to get some information on how it is helping other nations and ourselves implement the provisions and the goals of these treaties. Obviously, this information would be very sensitive so we would need some kind of committee where members would be under oath and where information could be shared with confidence that it would not compromise national security.

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4:25 p.m.

NDP

Francine Raynault NDP Joliette, QC

Mr. Speaker, I would like to thank my colleague for his speech.

In his view, how is the government going to deal with the potential problems stemming from the fact that the new Criminal Code offences have a broader scope than those found in individual international agreements?

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4:25 p.m.

Liberal

Francis Scarpaleggia Liberal Lac-Saint-Louis, QC

Mr. Speaker, I believe that the member for Toronto—Danforth talked about it in his speech.

It may not be intentional; perhaps it is a drafting error. For that reason, the bill will go to committee, where the experts will tell us if better alignment is needed to ensure that the bill's measures do not go too far in either direction. It can go either way. These important questions must be raised. This could be the issue in committee.

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4:25 p.m.

NDP

Craig Scott NDP Toronto—Danforth, ON

Mr. Speaker, I rise a second time because my hon. colleague said that he was rather shocked by the omission of making a device from the bill that went to the Senate. In light of the fact that he has had more legislative experience than I have, I wonder if he has had other experiences to know what it is about the legislative drafting process or the decision-making process that could account for that, especially the fact that the government does not seem to have even mentioned it in its presentation.

What should parliamentarians take away from this experience to this point when we cannot even get a direct answer from across the aisle?