Robert Goguen

[Nuclear Terrorism Act, March 7th, 2013]

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.

[Nuclear Terrorism Act, March 7th, 2013]

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.

[Nuclear Terrorism Act, March 7th, 2013]

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.

[Nuclear Terrorism Act, March 7th, 2013]

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.

[Nuclear Terrorism Act, March 7th, 2013]

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.

[Canadian Human Rights Act, February 27th, 2013]

Mr. Speaker, I am pleased to have this opportunity to comment on and contribute to the debate on Bill C-279, an act to amend the Canadian Human Rights Act and the Criminal Code (gender identity and gender expression).

Bill C-279 has been studied by the Standing Committee on Justice and Human Rights. While at committee, the sponsor of Bill C-279, the member for Esquimalt—Juan de Fuca, proposed several amendments. He proposed to add only the term “gender identity” and not “gender expression” as a prohibited ground in the Canadian Human Rights Act and to the hate propaganda and aggravated sentencing provisions of the Criminal Code. He also proposed to add a definition of the term “gender identity” to the bill's preamble.

I would like to begin with a discussion of the proposed amendment to the Canadian Human Rights Act. In interpreting and applying this act, the Canadian Human Rights Tribunal has already accepted and considered several complaints brought by transsexuals on the ground of sex. In fact, the ground of sex in any discrimination law is interpreted broadly and has evolved over the years. It is usually understood to cover discrimination complaints based not just on sex, but also gender-related attributes, such as pregnancy, childbirth, and more recently, transsexualism. For those complaints brought by transsexuals, the tribunal has used the existing grounds already contained in the act.

I would like to give a few examples to illustrate my point. The Canadian Human Rights Tribunal decided one case involving a male-to-female transsexual who was incarcerated in a federal men's prison. This inmate brought a complaint before the Canadian Human Rights Tribunal alleging discrimination because the prison refused to continue her sex reassignment treatments and did not want to transfer her to a women's prison.

The tribunal dealt with this complaint under the ground of sex. In its decision, the tribunal stated, and I am quoting directly from the 2001 judgment of Kavanagh v. Correctional Services of Canada, which says there is no dispute “that discrimination on the basis of Transsexualism constitutes sex discrimination as well as discrimination on the basis of a disability”.

In another decision of the Canadian Human Rights Tribunal, from 2004, Montreuil v. National Bank of Canada, a male-to-female transsexual, who was in the process of transitioning and was dressing in women's clothing, was refused employment at a bank. Here again, the tribunal dealt with this complaint using the ground of sex, as the parties agreed. The tribunal member commented that “as a pre-operative transgendered person, the Complainant belonged to the group of persons who cannot be discriminated against on the basis of sex, under the Act”.

In a 2009 decision from the tribunal involving the same complainant, the Canadian Forces had refused the complainant's application for enrolment in the forces after determining that she had gender identity disorder. While the complaint was eventually dismissed by the tribunal, the tribunal member stated quite plainly that “discrimination on the basis of transsexualism is discrimination on the basis of sex or gender, as well as discrimination on the basis of disability”.

In deciding that transsexuals are already protected by our federal human rights law, the tribunal's approach is consistent with that taken by the provincial human rights tribunals that have found discrimination against transsexuals to be covered by the existing ground of sex.

I will mention one more decision to make my point that discrimination against transsexuals can and already has been addressed by the current law. This example comes from a discrimination complaint that made its way to the British Columbia Court of Appeal. In this case, a male-to-female transsexual was refused a volunteer position at a women's shelter and rape crisis centre. Once again, the tribunal dealt with the complaint using the ground of sex, and the Court of Appeal accepted this. This is the Vancouver Rape Relief Society v. Nixon case, which was decided in 2005.

As I have just described, all of these cases were dealt with using the ground of sex. This makes sense, as the existing prohibited grounds of discrimination are subject to interpretation by the tribunals and the courts. The ground of sex has been interpreted broadly, as I mentioned earlier, which is in keeping with how human rights protections are generally interpreted by courts and tribunals.

Using all of these examples, I wish to make the point that transsexuals facing discrimination in federally regulated workplaces and in accessing federally regulated services are in fact already protected by the current law.

For similar reasons, we may wish to ask ourselves whether it is necessary to add these grounds to the sentencing provisions of the Criminal Code. The section in question lists a number of deemed aggravating circumstances on sentencing, including evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability or any other similar factor. Again, the list includes sex, and it also refers to any other similar factor. Consequently, judges may already be able to impose longer sentences for hate crimes against transsexual persons in appropriate circumstances.

If transsexuals are already protected from discrimination and are covered by the open-ended language of the sentencing provisions, we must ask ourselves this. What is the purpose of adding these terms?

It may be a largely symbolic or declarative purpose. In that case, on what basis do we decide to symbolically add one group and not others? Grounds of discrimination are not typically stated generally, like sex, race and religion. There are many different groups covered by these grounds. The Canadian Human Rights Act and the Criminal Code do not break these grounds into specific groups, which would involve selecting some groups over others for specific mention. If it turns out that, for example, people are being discriminated against on the basis of certain religious observance, then the general ground of religion is there to cover the situation. It would be inappropriate for Parliament to extend the list of grounds by adding particular religious observance.

If people with a particular disability are facing discrimination, then the ground of disability is in the act and can be used to protect these individuals. If we began to add specific groups, there might be no end to this kind of law reform and it could go on and on.

As I have said, the ground of sex is already in the act and has been used to address instances of discrimination against this group. The addition of gender identity is therefore unnecessary.

However, if its addition is not purely symbolic, as the sponsor tells us it is not, then we would ask ourselves this. If this ground were to be added to the Canadian Human Rights Act, what sorts of new complaints of discrimination will be brought before the Canadian Human Rights Commission and Tribunal? How will employers know what kinds of workplace behaviour and expression would be prohibited? The answers to these questions are not clear to me and they are questions that we should carefully consider.

As I have explained, I believe the amendments proposed by Bill C-279 are unnecessary. For these reasons, I will be opposing Bill C-279.

[Justice, February 26th, 2013]

Mr. Speaker, our Conservative government has taken strong steps to ensure that dangerous individuals are kept behind bars where they belong.

Canadians agree with our common sense reforms, like ending the misguided practice of giving two-for-one credit for time served before trial. However, not content to simply oppose these measures, the NDP made wild allegations that one bill alone would cost $19 billion because of the new prisons that would need to be built.

Clearly, nothing could be further from the truth. We announced the closing of two prisons in order to save taxpayers' money.

Yesterday, in main estimates, there were significant reductions in the cost of prisons due to the influx of new prisoners not materializing.

The thrust of our tough on crime agenda is to ensure that dangerous and repeat offenders are kept behind bars where they belong. We are not creating new criminals; we are simply stopping the revolving door of the justice system.

[Incorporation by Reference in Regulations Act, February 13th, 2013]

To be quite honest, Mr. Speaker, I am not sure exactly why the bill emanated from the Senate. What I can say is that the technique is one that has generally been used in a number of legislative enactments and there was always uncertainty as to whether it could or should be used. In fact, all the act would do is formalize and authorize the utilization of this technique so there could be no question as to whether something can be incorporated by reference into legislation.

One thing that is very important to recognize is that when it is incorporated in legislation, the governing body, whose document is incorporated, has an obligation, as does the federal government, to make sure that it is totally accessible. If there were a question, for instance, of the costs being prohibitive, we would not incorporate by reference a document that may not be readily accessible because of cost.

It is also important to note that no person who perhaps would not have access to a certain document incorporated in legislation could ever be prosecuted or sanctioned if it was not readily accessible.

[Incorporation by Reference in Regulations Act, February 13th, 2013]

Mr. Speaker, I would like to thank the member for her question.

This reductionist technique in no way affects the rule of law as it applies to official languages. The Reference re Manitoba Language Rights already recognizes the possibility of incorporating by reference in a single language. Is that the standard we wish to adopt? Certainly not. We know full well that the federal government always tries to make documentation available in both official languages.

As for international treaties, we know that it is not always possible to disseminate them in both official languages, for technical reasons. Similarly, materials of a technical nature, such as expert opinions, plans and diagrams, are often disseminated only in English. Some bilingual provinces, such as Quebec, Manitoba and New Brunswick, incorporate references that are unilingual into their provincial statues. Obviously, efforts are made to respect bilingualism.

[Incorporation by Reference in Regulations Act, February 13th, 2013]

moved that Bill S-12, An Act to amend the Statutory Instruments Act and to make consequential amendments to the Statutory Instruments Regulations, be read the second time and referred to a committee.

Today I would like to speak to you about Bill S-12, Incorporation by Reference in Regulations Act.

Bill S-12 has been studied by the Senate and has been adopted without amendment. This bill deals with a regulatory drafting technique. Essentially, the bill is about when federal regulators can, or cannot, use the technique of “incorporation by reference”.

The technique of incorporation by reference is currently used in a wide range of federal regulations. Indeed it is difficult to think of a regulated area in which incorporation by reference is not used to some degree. Bill S-12 is about securing the government’s access to a drafting technique that has already become essential to the way government regulates. It is also about leading the way internationally in the modernization of regulations.

But more specifically, Bill S-12 responds to concerns expressed by the Standing Joint Committee for the Scrutiny of Regulations about when incorporation by reference can be used. This bill would create the legal certainty that is needed to respond to those concerns.

Incorporation by reference has already become an essential tool that is widely relied upon to achieve the objectives of the government. It is an effective way to achieve many of the current goals of the Cabinet Directive on Regulatory Management, an important directive from the government that is designed to improve the efficiency and performance of regulations.

For example, regulations that use this technique are effective in facilitating intergovernmental co-operation and harmonization, a key objective of the Regulatory Cooperation Council established by our Prime Minister and President Obama.

By incorporating the legislation of other jurisdictions with which harmonization is desired, or by incorporating standards developed internationally, regulations can minimize duplication, an important objective of the Red Tape Reduction Commission, which issued its report earlier this year.

Incorporation by reference is also an important tool available for the government to facilitate Canada’s compliance with its international obligations. Referencing material that is internationally accepted rather than attempting to reproduce the same rules in the regulations also reduces technical differences that create barriers to trade and is in fact something Canada is required to do under the World Trade Organization’s Technical Barriers to Trade Agreement.

Incorporation by reference is also an effective way to take advantage of the particular expertise of standards writing bodies in Canada. Canada has a national standards system that is recognized all over the world. Incorporation of standards, whether developed in Canada or internationally, allows for the best science and the most accepted approach in areas that affect people on a day-to-day basis to be used in regulations. Indeed, reliance on this expertise is essential to ensuring access to technical knowledge across the country and around the world.

Testimony by witnesses from the Standards Council of Canada before the Standing Senate Committee on Legal and Constitutional Affairs made it clear how extensively Canada already relies on international and national standards. Ensuring that regulators continue to have the ability to use ambulatory incorporation by reference in their regulations means that Canadians can be assured that they are protected by the most up-to-date technology.

Incorporation by reference allows for the expertise of the Canadian National Standards System and international standards system to form a meaningful part of the regulatory tool box.

Another important aspect of Bill S-12 is that it allows for the incorporation by reference of rates and indices, such as the consumer price index or the Bank of Canada rates, which are important elements in many regulations. For these reasons and more, ambulatory incorporation by reference is an important instrument available to regulators when they are designing their regulatory initiatives.

Bill S-12 strikes an important balance by limiting the types of documents that can be incorporated by reference when these documents are produced by the regulation maker. Indeed, the incorporation of these documents can only be done statically. This is an important safeguard against circumvention of the regulatory process.

Parliament's ability to control the delegation of regulation-making powers continues, as does the oversight of the Standing Joint Committee for the Scrutiny of Regulations. We expect that the standing joint committee will continue its work in respect of the scrutiny of regulations at the time that they were first made, as well as in the future. We expect that the standing joint committee will indeed play an important role in ensuring that the use of this technique continues to be exercised in the way Parliament has authorized.

Another important aspect of this bill relates to accessibility. Bill S-12 not only recognizes the need to provide a solid legal basis for the use of this regulatory drafting technique, but it also expressly imposes in legislation an obligation on all regulators to ensure that the documents they incorporate are accessible to the public.

While this has always been something that the common law required, this bill clearly enshrines this obligation in legislation. There is no doubt that accessibility should be part of this bill. It is essential that documents that are incorporated by reference be accessible to those who are required to comply with them.

This is an important and significant step forward in this legislation. The general approach to accessibility found in Bill S-12 will provide flexibility to regulatory bodies to take whatever steps might be necessary to make sure that the different types of material from various sources are, in fact, accessible.

In general, material that is incorporated by reference is already accessible. As a result, in some cases, no further action on the part of the regulation-making authority will be necessary. For example, provincial legislation is already generally accessible. Federal regulations that incorporate provincial legislation will undoubtedly allow the regulator to meet the requirement to ensure that that material is accessible.

Sometimes, accessing the document through the standards organization itself will be appropriate. It will be clear that the proposed legislation will ensure the regulated community will have access to the incorporated material, with a reasonable effort on their part.

It is also important to note that standards organizations, such as the Canadian Standards Association, understand the need to provide access to incorporated standards. By recognizing the changing landscape of the Internet, this bill creates a meaningful obligation on regulators to ensure accessibility while still allowing for innovation, flexibility and creativity.

Bill S-12 is intended to solidify the government's access to a regulatory drafting technique that is essential to modern and responsive regulation. It also recognizes the corresponding obligations that regulators must meet when using this tool. The bill strikes an important balance that reflects the reality of modern regulation while ensuring that appropriate protections are enshrined in law. No person can suffer a penalty or sanction if the relevant material was not accessible to them.

The proposal would provide express legislative authority for the use of this technique in the future and confirm the validity of existing regulations incorporating documents in a manner that is consistent with that authority. There is every indication that the use of this technique will be essential to implementing regulatory modernization initiatives here in Canada in conjunction with our regulatory partners in the United States and around the world.

To conclude, enactment of the legislation is the logical and necessary next step to securing access in a responsible manner through incorporation by reference in regulations. I invite all members to support this legislative proposal and recognize the important step forward that it contains.