Debates of March 7th, 2013

Bill C-48—Time Allocation Motion

[Some hon. members]

Yea.

[The Deputy Speaker, NDP, Joe Comartin]

All those opposed will please say nay.

[Some hon. members]

Nay.

[The Deputy Speaker, NDP, Joe Comartin]

In my opinion, the nays have it.

And five or more members having risen:

Call in the members.

(The House divided on the motion, which was agreed to on the following division:)

Vote #630

Technical Tax Amendments Act, 2012

[The Speaker, Conservative, Andrew Scheer]

I declare the motion carried.

The House proceeded to the consideration of Bill S-9, An Act to amend the Criminal Code, as reported (without amendment) from the committee.

Nuclear Terrorism Act

[The Speaker, Conservative, Andrew Scheer]

There being no motions at report stage, the House will now proceed, without debate, to the putting of the question on the motion to concur in the bill at report stage.

[Peter Van Loan, Conservative, York—Simcoe, ON]

moved that the bill be concurred in.

[The Speaker, Conservative, Andrew Scheer]

Is it the pleasure of the House to adopt the motion?

[Some hon. members]

Agreed.

[The Speaker, Conservative, Andrew Scheer]

I declare the motion carried.

(Motion agreed to)

[The Speaker, Conservative, Andrew Scheer]

When shall the bill be read a third time? By leave, now?

[Some hon. members]

Agreed.

[Peter Van Loan, Conservative, York—Simcoe, ON]

moved that the bill be read the third time and passed.

[Robert Goguen, Conservative, Parliamentary Secretary to the Minister of Justice]

Mr. Speaker, I am pleased to participate in the third reading of debate on Bill S-9, the nuclear terrorism act. This important counterterrorism bill, if passed, will put Canada into a position to ratify and become a state party to the 2005 amendment to the convention on physical protection of nuclear materials, the CPPNM amendment, and the 2005 international convention for the suppression of acts of nuclear terrorism, the ICSANT.

Let me begin by quoting former United Nations secretary, Kofi Annan, who warned that if nuclear terrorism attacks were to occur, “it would not only cause widespread death and destruction, but would stagger the world economy and thrust tens of millions of people into dire poverty”.

In my remarks today, I will describe the four offences proposed in Bill S-9.. I will also outline how these offences fit within the existing Criminal Code counterterrorism operations with the intent to cause death, serious bodily harm, or substantial damage to property or the environment.

The penalty proposed for a conviction under section 82.3 is a maximum term of life imprisonment. This offence captures the distinct criminalization requirements of both the CPPNM amendment and the ICSANT. It is important to note that in seeking to ratify international agreements, dualist countries like Canada can rely on existing domestic law to achieve compliance with the treaty requirements. In this regard, for the unlawful export or import of nuclear materials where no specific intent is called for by the CPPNM amendment, Canada will be relying on a number of offences which directly target this activity, notably under the Export and Import Permits Act, the Nuclear Safety and Controls Act and the Customs Act.

Second, the bill proposes, at section 82.4, an offence for using or altering nuclear or radioactive material, or a nuclear or radioactive device, with the intent to compel a person, government, or international organization to do or refrain from doing any act. The proposed offence also criminalizes the commission of an act against a nuclear facility or its operations, also with the intent to compel a person, government, or international organization to do or refrain from doing an act.

Common to all the criminal acts in this offence is the intent to compel or influence the behaviour of others. This intent requirement is a characteristic of terrorism. Given the seriousness of these nefarious acts, this offence would carry a maximum punishment of life imprisonment.

The third offence in Bill S-9 addresses the commission of an indictable offence for the purpose of obtaining nuclear or radioactive material, or nuclear or radio active device, or to obtain access to a nuclear facility. If convicted under this section, offenders would be liable to a maximum of life imprisonment.

Both the CPPNM amendment and the ICSANT specifically reference criminal conduct such as theft and robbery committed for the purposes of obtaining nuclear or radioactive materials or devices. However, the treaties also specifically prohibit the “use of force or any other form of intimidation”, at article 9(f) of the CPPNM amendment and “use of force”, at article 2(2) of the ICSANT to obtain these materials.

By prohibiting the use of force, the treaties contemplate prohibiting conduct beyond the specified conducts. The notion of use of force is quite broad and could include any acts of violence or force and therefore any number of existing indictable offences could be contemplated as falling within that conduct, such as murder. It is for this reason that the present formulation of section 82.5 has been used. The scope of this offence is comparable to the requirement of the treaties, although formulated differently.

The final offence set out in Bill S-9 proposes a specific offence to threaten to commit any of the other offences in Bill S-9. The proposed punishment is a maximum term of 14 years imprisonment. The 14 year maximum penalty in the new offence recognizes the heightened seriousness of a threat in a nuclear context, with a sentence proportionate to the potential chaos that such a threat could create.

Many existing offences in the Criminal Code use the concept of “threat“ to describe prohibited conduct. I would also note that the Criminal Code contains a general uttering of threats offence at section 264.1. When examining the meanings of threats, the case law in Canada for the uttering threats offence has indicated the words are to be interpreted objectively within the context and circumstances. In other words, would they convey a threat which is a threat to a reasonable person? In addition, the mens rea has been interpreted to require that the accused intended his or her words to intimidate or to be taken seriously.

These four offences that I have just described, combined with the general provisions of 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, would put Canada in a position to ratify both of the treaties.

When we look at the proposed level of punishment for the offences in Bill S-9, I think members would agree that they are appropriate given the grave nature of the prohibited conduct. They are also consistent with other terrorism acts in the Criminal Code, for example, section 83.2, commission of an offence for a terrorist group, and subsection 83.21, instructing others to carry out terrorist activities. Both of these carry maximum terms of life imprisonment.

Some of the other areas of Bill S-9 that warrant mention are, first, that it would provide for concurrent prosecutorial jurisdiction over the offences between the provincial and federal attorneys general, an arrangement which is consistent with other terrorism offences in the Criminal Code. Second, the bill would provide for new offences to be added to both the wiretap and the DNA provisions of the Criminal Code. Third, by adding the CPPNM amendment and the ICSANT to the definition of terrorism activities under section 83.01(1)(a) of the Criminal Code, a number of existing powers and procedures would apply to the new offences, including reverse onus at bail and one year wiretap authorizations, to name a few. These offences were designed in such a way so as to fit within the existing terrorism provisions of the Criminal Code.

In addition, these treaties require a sentence to assume extraterritorial prosecutorial jurisdiction over these offences. In this regard, Bill S-9 would give Canadian courts the jurisdiction to try these new offences in situations, for example, where the offence was committed outside Canada by a Canadian citizen or when the person who committed the act or omission outside Canada was, after the commission of the offence, present in Canada. Canada can already assume similar jurisdiction to prosecute other terrorism acts in the Criminal Code.

The final technical aspect of the bill that I will note is, as called for by both the CPPNM amendment and the ICSANT, these offences would specifically not apply to a lawful act that is committed during an armed conflict or to activities undertaken by military forces of a state in the exercise of their official duties to the extent that those activities were governed by other rules of international law.

The military exclusion language used in Bill S-9 is similar to that which is present as set out in subsection 431.2(3) and subsection 80.3(1) of the Criminal Code. Notably, the Supreme Court of Canada in the December 2012 Khawaja decision provided guidance on the application of the military exclusion clause used in the definition of terrorist activities in the Criminal Code. In rejecting the application of military exclusion to the defendant, the court found: first, the military exclusion clause functioned as a defence and therefore it was for the defence to raise an error of reality to the claim that it applied; and second, the conduct in question must otherwise be in accordance with applicable international law such as the Geneva Convention.

Over the course of Bill S-9 moving through the legislative process, much has been said about the impetus for Bill S-9 from both a domestic and international perspective. The context in which the bill has been brought forward has been debated and continues to be of vital importance.

The original CPPNM, which was negotiated in 1980, is presently the only legally binding international instrument in the area of physical protection of nuclear material. Canada signed it in September 1980 and ratified it in March 1986. Canada achieved ratification in 1986 through amendments to a range of statutes, including the Criminal Code.

Twenty-five years later the international community, through the International Atomic Energy Agency, recognized the need to revisit the original CPPNM. In this regard, in July 2005, state parties to the CPPNM, including Canada, adopted the CPPNM amendment. One of the key additions to the original treaty is a requirement for state parties to protect nuclear facilities and materials in peaceful domestic use, storage and transport.

Also, in 2005 under the guidance of the United Nations General Assembly, the ICSANT was negotiated and adopted. The purpose of the ICSANT was to cover a broad range of nuclear terrorism acts and possible targets.

Canada is not alone in seeking to become a state party with these two important nuclear security treaties. At a second world leaders nuclear summit held last year in Seoul, Republic of Korea, 53 heads of state, including the Prime Minister of Canada, recognized the importance of multilateral instruments that addressed nuclear security such as the CPPNM amendment and the ICSANT.

The world leaders committed to work together through a universal assurance of a CPPNM amendment and the ICSANT. If Bill S-9 is passed, Canada will be in a position to report this accomplishment at the next world leaders nuclear summit in 2014. The CPPNM amendment at last count has 64 state parties while the ICSANT has 83 state parties.

Some of our closest allies have recently taken important domestic steps in this area. The United Kingdom became a state party to the ICSANT in 2009 and the CPPNM amendment in April 2010. In addition, Australia modified its laws to achieve ratification of the CPPNM amendment in 2008 and the ICSANT in 2012.

Let me conclude my remarks by heightening what Belfer Center for Science and International Affairs at Harvard University said in its 2011 report entitled “U.S.-Russia Joint Threat Assessment on Nuclear Terrorism”. In a short yet powerful statement it warned that of all the varieties of terrorism, nuclear terrorism poses the gravest threat to the world.

Bill S-9 is balanced and timely and, most important, it is designed to target this new reality.

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, the idea of nuclear terrorism is a scary thought.

I have a question for the Parliamentary Secretary to the Minister of Justice about his conclusion.

What does he think is the most serious nuclear terrorist threat to Canada?

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, it is very difficult for me to answer that question, since I do not know all the state secrets, as they cannot be divulged.

However, we are certainly always on the lookout for threats. We know that people go to other countries to be trained by terrorist groups. We must always be vigilant.

Honestly, I cannot give you a list of factors that I do not know myself. It is not because I do not want to.

[Chris Alexander, Conservative, Parliamentary Secretary to the Minister of National Defence]

Mr. Speaker, humanity has seen, unfortunately, the use of nuclear weapons and we have seen terrorism, especially after 9/11. However, we have never seen the two used in conjunction and it is terrifying prospect.

Would the parliamentary secretary not agree that given our international obligations in this respect, given our leadership on disarmament, on issues of international peace and security and given that Canada produces and exports nuclear materials, this is one case, one bill where achieving the unanimous support of the House would be a very valuable signal. On our side, we could not, and most Canadians could not, see any reason why that unanimity would not be achieved?

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, being part of a ratification of a treaty that has worldwide acceptance against one of the major threats as recognized by most world leaders, nuclear terrorism, is a very important facet of being a world leader. Certainly we are world leaders, not only in the area of protection of our citizens and citizens abroad, but we are also world leaders in the development of nuclear technology.

If we have the capacity to develop nuclear equipment, nuclear technology, we have a further and stronger obligation to ensure our facilities and those areas where such projects are developed are appropriately protected, not only for domestic purposes but also for abroad.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, I am wondering if the minister would be able to provide some comment in regard to the formal communications relationship that would exist with his provincial counterparts regarding the nuclear program, nuclear terrorism, the potential for nuclear terrorism, or anything of that nature. Does that exist, and if so, to what degree?

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, I regret to advise that I am unable to answer exactly what go-betweens there are with the provinces and the federal government on this issue. However, with regard to the amendments to the Criminal Code and the prosecution, it is a boilerplate issue that basically there be joint jurisdiction in prosecuting such offences.

That is the limit of my answer to that relevant question.

[Dan Harris, NDP, Scarborough Southwest, ON]

Mr. Speaker, I was surprised a minute ago when the parliamentary secretary for defence did not make reference to the Pickering nuclear power plant, which is very close to his riding. It is within sight of my riding of Scarborough Southwest as well. That does bring up the provincial issue, again, because the nuclear power plants are provincially run.

Hearing about the negotiations that happened with the Province of Ontario, certainly not details which must remain secure, I wanted to ask in what way the government is evaluating the progress accomplished on the international scene with regard to the questions linked to nuclear terrorism.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Mr. Speaker, as I understand it, the question is what we have accomplished with regard to international treaties, working with other countries and how we are measuring that.

Unfortunately, that is something that would be in the realm of CSIS. It would be information that I would not be privy to, and if I were would be unable to disclose.

[Andrew Cash, NDP, Davenport, ON]

Mr. Speaker, I think that Canadians are interested in this debate. One issue that I think concerns a lot of people, certainly in Toronto, is this. The goal of the bill is to take and enforce effective measures to prevent the proliferation of nuclear materials. That does raise a question around the proliferation of handguns and small arms that are awash in big cities in Canada. Largely, they are coming illegally across our borders with the United States. When we see that the Conservative government has failed cities with regard to ensuring their safety from illegal weapons coming across the borders, it does not provide us with the kind of solace we need. Notwithstanding the intent of this legislation, how can we feel secure and safe that the government can find illegal nuclear weapons that are traversing our country, if it cannot find the weapons that are finding their way into the hands of gangs on the streets of Toronto?