An independent Canadian nuclear deterrent

An Act respecting the establishment of an independent Canadian nuclear deterrent

Preamble

Whereas the defence of Canada is a matter assigned to the Parliament of Canada by class 7 of section 91 of the Constitution Act, 1867;

Whereas Article 51 of the Charter of the United Nations affirms the inherent right of individual and collective self-defence;

Whereas Canada shares the Arctic Ocean with a nuclear-armed state, holds the longest coastline in the world, and maintains armed forces that could not, on their own, deny that coastline to a determined adversary;

Whereas the security of Canada has rested for eight decades on assurances given by other states, and Parliament observes that assurances given to Ukraine in the Budapest Memorandum of 1994, in exchange for the surrender of the nuclear weapons then on its territory, did not prevent the invasion of that state;

Whereas Canada helped build the first nuclear weapons, and then kept nuclear weapons on Canadian soil for twenty-one years, from 1963 to 1984, so that this country is not contemplating a new capability but recovering one it already held and gave away;

Whereas Article X of the Treaty on the Non-Proliferation of Nuclear Weapons expressly reserves to each Party the right to withdraw from that Treaty if extraordinary events have jeopardized its supreme interests;

Whereas Article 5 of the North Atlantic Treaty provides that each Party, upon an armed attack against another, will assist by taking "such action as it deems necessary", so that the measure of the assistance is left to the assisting Party and no Party is bound to any particular response, nuclear or otherwise;

Whereas Article 11 of that Treaty provides that its provisions are carried out by the Parties in accordance with their respective constitutional processes, and Article 13 provides that any Party may cease to be a Party one year after giving notice of denunciation;

Whereas the Agreement between the Government of Canada and the Government of the United States of America on the North American Aerospace Defense Command, done at Ottawa on 28 April 2006, assigns to that Command the missions of aerospace warning, aerospace control and maritime warning, contains no undertaking by either Party to defend the other against nuclear attack, provides that its aerospace warning mission supports the national commands of the United States responsible for missile defence, and provides that either Party may terminate it upon twelve months' written notice;

Whereas that Agreement entered into force by an exchange of diplomatic notes and was never enacted by Parliament, so that the arrangement on which the defence of Canada against nuclear attack is publicly said to rest is terminable at one year's notice by a foreign government and at twelve months' notice under the Command agreement, and Parliament has no part in either;

Whereas Parliament has examined the instruments named above and finds in none of them an obligation upon any state to defend Canada against nuclear attack;

Whereas a deterrent that a foreign government may withhold is not a deterrent that belongs to Canada;

And whereas any such capability must remain at all times under the control of civil authority answerable to Parliament;

Now, therefore, His Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

1 This Act may be cited as the Canadian Nuclear Deterrent Act.

PART 1 — INTERPRETATION

2 In this Act,

"Agency" means the Canadian Strategic Deterrent Agency established by section 8;

"minimum credible deterrent" means the smallest arsenal that is sufficient to impose on any state contemplating a nuclear attack, or an attack with other weapons of mass destruction, against Canada a cost that state would judge unacceptable, and that is capable of surviving a first strike in a quantity sufficient to be employed thereafter;

"Minister" means the Minister of National Defence;

"nuclear explosive testing" means any test involving a self-sustaining nuclear explosive chain reaction;

"Treaty" means the Treaty on the Non-Proliferation of Nuclear Weapons, done at London, Moscow and Washington on July 1, 1968.

PART 2 — DECLARATION OF POLICY

3 (1) It is declared to be the policy of Canada to acquire, to maintain and to retain under exclusive Canadian custody and control a minimum credible deterrent.

(2) The deterrent is to be maintained at the smallest size consistent with the definition in section 2, and the Agency shall in each annual report state the basis on which it has determined that size.

(3) The Governor in Council shall review the size of the deterrent whenever the capability of any state that could reach Canada with nuclear weapons materially increases.

PART 3 — WITHDRAWAL FROM THE TREATY

4 Parliament declares that extraordinary events, related to the subject matter of the Treaty, have jeopardized the supreme interests of Canada, namely the presence on Canada's approaches of nuclear-armed states whose capabilities Canada cannot match by conventional means, and the absence of any instrument by which Canada can compel a foreign government to defend it.

5 (1) The Minister of Foreign Affairs shall, within ninety days after this section comes into force, give to all other Parties to the Treaty and to the Security Council of the United Nations the notice provided for in Article X of the Treaty, together with a statement of the extraordinary events set out in section 4.

(2) The notice shall state that Canada will continue to apply the safeguards agreement between Canada and the International Atomic Energy Agency, and the Additional Protocol to that agreement, to every nuclear facility in Canada other than a facility designated under section 11.

6 Canada shall not conduct, authorize or participate in nuclear explosive testing, and shall continue to observe the Comprehensive Nuclear-Test-Ban Treaty in that respect notwithstanding any withdrawal from the Treaty.

7 No nuclear weapon, and no component of a nuclear weapon, belonging to Canada shall be transferred to any other state, to any person, or to any international organization, whether directly or indirectly.

PART 4 — CANADIAN STRATEGIC DETERRENT AGENCY

8 (1) There is established an agency, to be known as the Canadian Strategic Deterrent Agency, over which the Minister presides.

(2) The Agency is a department for the purposes of the Financial Administration Act, and its chief executive is a Director General appointed by the Governor in Council to hold office during pleasure for a term not exceeding five years, renewable once.

(3) The Agency shall (a) design, produce, maintain and, when they are withdrawn from service, dismantle the weapons and delivery systems required by the policy declared in section 3; (b) maintain the physical security of those weapons and of the facilities designated under section 11; (c) maintain a register of every weapon and of every quantity of fissile material in its possession, reconciled at least quarterly; and (d) report to the Minister in the manner and at the times the Minister directs, and in any event annually.

(4) Every person appointed to, or employed in, the Agency, and every person who has access to a facility designated under section 11, shall hold a security clearance at the level prescribed by regulation.

(5) The Agency shall be staffed and its work performed exclusively by persons who are citizens of Canada.

PART 5 — CUSTODY, COMMAND AND AUTHORIZATION

9 (1) Custody of every Canadian nuclear weapon rests exclusively with officers of the Canadian Forces or officials of the Agency who are citizens of Canada and who are within the chain of command established under this Part.

(2) No agreement with a foreign state, and no arrangement with an international organization of which Canada is a member, shall confer on any person who is not a citizen of Canada any power to authorize, to withhold authorization of, to direct, or to prevent the employment of a Canadian nuclear weapon.

(3) No Canadian nuclear weapon shall be stored, deployed or based outside Canada or outside a vessel or aircraft of the Canadian Forces.

10 (1) A Canadian nuclear weapon shall not be employed except on the concurrent authorization of the Prime Minister and of the Minister, given in a manner prescribed by regulation and recorded.

(2) Where the Prime Minister is unable to act, the authorization required of the Prime Minister by subsection (1) may be given by the person designated in a written instrument made by the Prime Minister and deposited with the Clerk of the Privy Council, and where the Minister is unable to act, by the person so designated in respect of the Minister.

(3) A designation under subsection (2) shall name a person who is a member of the Queen's Privy Council for Canada and a citizen of Canada, and the fact that a designation has been made, but not its content, shall be reported to the Committee established by section 13.

11 The Governor in Council may designate a facility as a defence nuclear facility for the purposes of this Act, and shall cause the designation, but not the location or description of the facility, to be published in the Canada Gazette.

PART 6 — PURPOSE OF EMPLOYMENT

12 (1) It is declared that the sole purpose of Canadian nuclear weapons is to deter a nuclear attack, or an attack with other weapons of mass destruction, against Canada or against a state with which Canada has a treaty of mutual defence.

(2) Subsection (1) does not create a right or a defence enforceable by any person, and is a declaration of the policy of Canada.

(3) No declaration made under this section limits the authority conferred by section 10.

PART 7 — SAFETY AND OVERSIGHT

13 (1) There is established a committee, to be known as the Committee of Parliamentarians on the Strategic Deterrent, consisting of three senators and six members of the House of Commons, of whom not fewer than four shall be members of parties other than the government party.

(2) Every member of the Committee shall hold a security clearance at the level prescribed by regulation and shall take an oath of secrecy.

(3) The Committee is entitled to any information under the control of the Agency, of the Department of National Defence or of the Canadian Forces that relates to the exercise of powers under this Act, and shall review at least annually the legality, the cost and the safety of the activities carried out under this Act.

(4) The Committee shall submit an annual report to the Prime Minister, who shall cause a version of it, revised only to the extent necessary to remove information the disclosure of which would be injurious to national security, to be tabled in each House within thirty sitting days after it is received, together with a statement of the extent of the revisions.

14 (1) There is established the office of the Defence Nuclear Safety Regulator, appointed by the Governor in Council for a term of seven years and removable only for cause on an address of the Senate and the House of Commons.

(2) The Regulator is independent of the Agency and of the Department of National Defence, and shall set and enforce standards for the safety of defence nuclear facilities and activities that are at least equivalent to those the Canadian Nuclear Safety Commission applies to civil facilities.

(3) The Regulator may order the suspension of any activity carried out under this Act that presents a serious risk to the health or safety of persons or to the environment, and shall report every such order to the Committee within seven days.

(4) For greater certainty, the Nuclear Safety and Control Act continues to apply to every nuclear facility in Canada other than a facility designated under section 11.

PART 8 — FINANCIAL PROVISIONS

15 (1) The costs incurred under this Act shall be paid out of moneys appropriated by Parliament for that purpose.

(2) The estimates submitted to Parliament in respect of the Agency shall state the total sum sought as a single vote, and the Minister shall at the same time provide to the Committee a full itemization of that sum.

(3) In each fiscal year the sum appropriated for the purposes of this Act shall be not less than 0.25% of the gross domestic product of Canada for the preceding calendar year, until the Minister certifies to the Committee that the deterrent is operational.

(4) The Auditor General shall audit the accounts of the Agency annually and shall report to the Committee.

PART 9 — REVIEW

16 Five years after the day on which section 5 comes into force, and every five years thereafter, a committee of each House, or a joint committee, shall undertake a comprehensive review of this Act and of its operation, and shall report within one year.

17 No weapon in the possession of the Agency shall be dismantled, and no capability established under this Act shall be reduced or surrendered, except under an Act of Parliament enacted for that purpose.

COMING INTO FORCE

18 This Act comes into force on the day on which it receives royal assent.