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.
