Parliamentary Committee Notes: Overview Deck

Taliban Takeover of Afghanistan

• Since the Taliban takeover of Afghanistan in August 2021:
  • Deepening economic and humanitarian crisis due to several factors
  • Cutoffs in aid and corresponding cuts to wages of essential workers;
  • Sanctions on the Taliban rulers;
  • Halt on bank transfers;
  • Restricted access to global institutions that supported aid-dependent economy;
  • Spiking prices for essential goods and food;
  • Devastating and destructive natural disasters.
• Women and girls particularly hard hit by the economic crisis
  • The Taliban's actions pushing many women out of paid work, blocking female aid workers from doing their jobs, and not providing the right to education for girls.
• Persecution of those who assisted Canada and our allies and other vulnerable people in Afghanistan, specifically members of LGBTQ2l, religious and ethnic minority communities, human rights defenders, journalists, women's rights activists, and others

Current Situation in Afghanistan: United Nations Reporting

• People in Afghanistan are facing a food insecurity and malnutrition crisis of unparalleled proportions, which has deteriorated since the Taliban takeover.
  • The rapid increase in those experiencing acute hunger – from 14 million in July 2021 to nearly 20 million in 2023, including more than 6 million facing emergency levels of food insecurity.
  • Millions of children continued to face acute malnutrition – an estimated 4 million pregnant and lactating women and children are at risk of acute malnutrition in 2023.
  • In 2023, a total of 28.3 million people or two thirds of the population are in need of humanitarian assistance – a 16 per cent increase since 2022.
  • There are needs in every province of Afghanistan, with extreme need in 33 out of 34 provinces, indicating how widespread the crisis is across the country.
  • More than 3 million people are internally displaced.

“Today, the tragic reality is that the scale of needs in Afghanistan far outstrips the response capacity of humanitarian actors to meet them…At the same time, humanitarian action has been absolutely essential in keeping the Afghan people alive, maintaining basic services, and shoring up the economy at a time when no alternatives have been available.”

Canadian Commitments and Response

• Since 2001, Canada has provided a total of nearly $4.05 billion in international assistance to support efforts in Afghanistan.
• Canada remains committed to ensuring that its international and local partners are able to support international assistance efforts, advocate for human rights, including those of Afghan women and girls, and to resettle at least 40,000 vulnerable Afghans in Canada.
• The House of Commons Special Committee on Afghanistan highlighted the enormity of needs and vulnerabilities that exist in Afghanistan and in Recommendations 10 and 11 called for immediate action by the Government of Canada (GoC).
  • The GoC's response agreed with these recommendations and recognized the need for measures, including legislative options.
• The Standing Senate Committee on Human Rights recommended that the Government urgently introduce legislation to create an explicit humanitarian exemption to the Criminal Code to section 83.03(b).

Exemptions and the Criminal Code

• Paragraph 83.03(b) of the Criminal Code makes it a criminal offence to collect property, or provide, invite a person to provide, or make available property or financial or other related services, directly or indirectly, knowing that it will be used by, or benefit, a terrorist group.
• Payments, including taxes or import tariffs, made to the de facto national authority in Afghanistan would inevitably be used by and/or benefit the Taliban:
  • Canadian organizations delivering assistance, such as humanitarian aid, safe passage and immigration processing activities, are at risk of contravening the Criminal Code;
  • Organizations and stakeholders are calling for permanent and well-framed humanitarian exemptions to be included in the relevant sections of the Criminal Code.
• Thus far there were no exemptions to this offence but Bill C-41 seeks to rectify this by allowing the government to issue authorizations while safeguarding against terrorist financing.

Summary

• Bill C-41 would:
  • Amend the Criminal Code by creating a regime permitting the Minister of Public Safety (PS) to grant an authorization under which an eligible person (including organizations) may carry out, in a geographic area controlled by a terrorist group and for certain purposes, activities that otherwise would be prohibited under paragraph 83.03(b);
    • A person is eligible to be granted an authorization if they are in Canada or a Canadian outside Canada.
  • Make related consequential amendments to other acts; and
  • Permit the Governor in Council to issue regulations in respect to the authorization regime.

An important balance

• The current proposal as captured in Bill C-41 presents a balance between clarifying permissible action while mitigating abuse by nefarious actors or organizations with links to terrorist groups.
  • The scope considers efforts needed to help move Afghans and others from a mode of survival to longer-term sustainability including the need to support women and girls and their safe and meaningful participation in society.
  • It also enables activities to support immigration processing for Afghans seeking to leave dangerous situations.
• A carve-out for humanitarian assistance would not permit the ability to facilitate the provision of these other forms of assistance beyond humanitarian.
• An exemption for humanitarian aid would not provide the same security checks and balances and could risk greater abuse of the provision.
• As well, it may not have provided the desired certainty for affected organizations and third parties (such as banks) that their activities were covered by any exemption.

Scope and Purposes

• Authorizations can be granted for a class of activities for any specified purpose from the following:
  • Humanitarian assistance (e.g., food, shelter, hygiene, protection)
  • Health services (e.g., immunization, maternal and childcare services, disease outbreak monitoring and response)
  • Education services (e.g., education materials, literacy training)
  • Programs that support earning a livelihood (e.g., provision of small-scale agricultural inputs to assist vulnerable farmers, support to women-led businesses)
  • Human rights programming (e.g., support for human rights defenders and women's rights groups)
  • Immigration services, including resettlement and safe passage (e.g., transportation, accommodations)
  • Activities to support federal ministers or GoC departments or agencies to conduct critical operations other than those outlined above.

Conditions for Referral: Assessment of Benefit

• The Minister of PS will consider applications referred to him/her by the Minister of Foreign Affairs and/or the Minister of Immigration, Refugees and Citizenship (IRC).
• For an application to be referred, the Minister of Foreign Affairs and/or IRC must be satisfied that the application:
  • Meets any requirements set out in regulations;
  • Proposes activities that will occur in a geographic area controlled by a terrorist group and align with the permitted purposes under the regime;
  • Proposes activities that respond to a real and important need in the geographic area; and
  • Is made by an applicant capable of administering funds, and reporting on that administration, in a transparent and accountable manner.

Security Review: Assessment of Risk

• After receiving a referral, the Minister of PS will conduct a security review to assess the impact of granting the authorization on terrorism financing and other security considerations before granting an authorization.
• The security review will assess, among other factors:
  • Whether the applicant or any persons involved with the proposed activity have any links to terrorist groups;
  • The likelihood that the applicant or any persons involved in the proposed activity, will be acting on behalf, at the direction, or in association with a terrorist group in carrying out the activity; and
  • Whether the applicant or any persons involved in carrying out the proposed activity is or has been investigated, charged or convicted of a terrorism offence.
• The Minister of PS may request that the applicant provide additional information within a specified period. The application may be deemed to be withdrawn if the applicant fails to do so, without reasonable explanation.

Granting Authorizations: Need & Risk / Benefit Assessment

• The Minister of PS may decide to grant an authorization if they are satisfied that:
  • There is no practical way of carrying out the proposed activity without creating a risk of terrorism financing; and
  • The benefits of the proposed activity outweigh that risk.
• The risk / benefit assessment will consider:
  • The referral of the Minister of Foreign Affairs and/or IRC on the need for the proposed activity in the specified region, and the capability of the applicant to manage funds in circumstances involving terrorist groups, amongst other things;
  • The security review findings;
  • Any measures to mitigate risk and any other terms and conditions, that may be included in the authorization; and
  • Any other factors considered appropriate.

Refusal of Authorizations and Recourse

• The Minister of PS, the Minister Foreign Affairs and/or the Minister of IRC must give notice of a decision to refuse an application within a reasonable time.
  • An applicant whose application was refused is not permitted to make a new application for the same proposed activity for 180 days.
• The decisions made by the Minister of PS, the Minister of Foreign Affairs and the Minister of IRC are subject to judicial review.
  • Proceedings may not disclose information that is injurious to international relations, national defence or national security or could endanger the safety of any person if disclosed. Such information will be reviewed in private by a designated judge.

Granted Authorizations & Renewal

• A granted authorization:
  • Is valid for a period up to 5 years, as specified in the authorization;
  • May be subject to additional security reviews;
  • May be subject to any terms and conditions;
  • Applies, in addition to the person named in it, to any other person involved in carrying out an activity in accordance with the authorization;
  • Does not guarantee that financial institutions will facilitate financial flows to Afghanistan but may help those institutions in deciding whether or not to facilitate that flow.
• To renew the authorization, applicants must apply prior to the expiry of an authorization and in accordance with regulations.
  • If an authorization has expired, the Minister of PS may renew the authorization if there are exceptional circumstances.

Amendment, Revocation & Suspension

Amendment

On request of the applicant, the Minister of PS would be able to amend any granted or renewed authorization except if the proposed modification alters the essential nature of the application, including if it would change the purpose for which it was granted.

Revocation and Suspension

• Granted or renewed authorizations may be revoked, suspended, or restricted in scope, at any time, by the Minister of PS, if:
  • The applicant fails to comply with the authorization or its terms and conditions;
  • The applicant fails to comply with reporting requirements or does not provide requested information; or
  • The Minister of PS determines that the benefit of the activity no longer outweighs the risk of terrorist financing.

Assistance & Information Sharing

• To administer and enforce the regime, the following persons or entities may provide assistance, including collecting information from, and disclosing information to, the Minister of PS and each other:
  • Canadian Security Intelligence Service;
  • Royal Canadian Mounted Police;
  • Communications Security Establishment;
  • National Defence and Canadian Armed Forces;
  • The Department of Foreign Affairs, Trade and Development;
  • Canada Revenue Agency (taxpayer information may be shared only for the purpose of security reviews);
  • Canada Border Services Agency;
  • Immigration, Refugees and Citizenship Canada; and,
  • Any other person or entity prescribed by regulation.

Questions?

Date modified:

2023-08-03